Whistleblowing Under California Employment Laws
Jun 25, 2021
| By Ottinger Employment Lawyers
| Read Time: 3 minutes
California whistleblowing law is designed to protect employees who report misconduct at work. These laws protect employees in Los Angeles, San Francisco and throughout the state from retaliation. Whistleblowing refers to when an employee “blows the whistle” on his or her employer by reporting the employer’s misconduct which can include: Violation of a state or federal law, Violation or noncompliance with a local, state or federal rule or regulation, or Unsafe working conditions or practices in the context of employee health and safety. The main protection for whistleblowers in California is found in Labor Code Section 1102.5. What is Covered by California’s Whistleblower Law? The California whistleblower law prohibits employers from retaliating against an employee who reports violations of law or noncompliance with local, state or federal rules or regulations. In addition, the whistleblower law protects employees from retaliation for refusing to participate in an activity that would be a violation of law. Firing an employee for whistleblowing is a form of wrongful termination. Under Government Code Section 8547.1, which extends whistleblower protections to employees of government agencies, it is the declared intention of the state legislature that, in addition to violations of law, state employees should also be free to report “waste, fraud, abuse of authority” and “threat to public health” without any fear of retribution. Increased Protections Under the Whistleblower Law In 2014, the general California whistleblower law was expanded in three important ways. First, protection against whistleblower retaliation in California was extended to employees who report suspected illegal behavior internally – to either a supervisor or another employee with authority to investigate, discover or correct the reported violation. Second, employees also now receive protection if they believe they have been retaliated against based on the employer’s belief that the employee has either already disclosed or will later disclose a violation of law, regardless of whether any actual disclosure of unlawful activity has been made by the employee. Third, the types of complaints an employee may make under the whistleblower protections were expanded to include violations of local rules and regulations, such as city charters and municipal codes, in addition to state and federal laws. For example, certain cities such as Los Angeles and San Francisco have their local laws and ordinances. Reporting potential violations of those local laws are now covered by California’s whistleblower laws. Contact Us Schedule your free consultation. What Counts as Retaliation Under the California Whistleblower Laws? Whistleblower retaliation can take many forms. The most obvious is, of course, being fired. But retaliation can happen in other ways, as well. For instance, you could be demoted or denied a promotion for which you would otherwise be considered, you could be isolated from other workers, you could get threats or be harassed in other ways, you could be denied access to resources you need to do your job, or you could be denied access to professional development opportunities. You might also face retaliation that is related to your or a family member’s immigration status. Can I Become a Whistleblower and Remain Anonymous? It may be possible in some cases to remain anonymous, but you would be wise not to count on it. It can be extremely difficult to remain anonymous since many cases eventually become public. Even if it is possible to remain unknown to the public in some cases, you should still expect that the entity you are blowing the whistle against could eventually learn your identity – that entity will be entitled to defend itself against claims that is doing or has done something wrong. The more serious the wrongdoing, the more vigorously an organization may feel compelled to defend itself. Reasonable Cause of Wrongdoing is Enough Under the Whistleblowing Law You do not have to prove beyond “a shadow of a doubt,” that your organization, company or state agency is violating a law, rule or regulation in order to claim protection under California’s whistleblower law. You do need to have reasonable cause to believe that there is some sort of illegal conduct or wrongdoing. Even if the underlying conduct is not ultimately determined to be unlawful, making a good faith complaint based on your reasonable belief is enough to trigger the California whistleblower law’s protection against retaliation by your employer. Filing a California Whistleblower Complaint or Lawsuit If you are thinking of becoming a whistleblower, you may wish to seek the advice of one of our California whistleblower attorneys before you move forward. This could help you fully understand your options in the event of any fallout. If you are already a whistleblower who is dealing with retaliation in California, you might wish to consult one of our lawyers to discuss your options for filing a retaliation lawsuit. Remedies Under the Whistleblower Law If you win a whistleblower retaliation claim, your employer may be required to reinstate employment and work benefits, pay your lost wages, and compensate you for pain and suffering or emotional distress. Whistleblower verdicts can be very large. Jurors tend to punish companies for firing employees who report misconduct in the workplace. Contact us online or call (800) 668-7984 if you have been fired or retaliated against for reporting misconduct. For details about our Los Angeles office, click here. For details about our San Francisco office, click here.
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Constructive Discharge in California
Mar 17, 2021
| By Ottinger Employment Lawyers
| Read Time: 3 minutes
Constructive discharge is a term used to describe a situation where an employer forces an employee to quit. This is often referred to as constructive dismissal or constructive termination. Rather than firing an employee for an illegal reason, some California employers attempt to skirt liability by forcing the employee to resign. A constructive discharge occurs when an employee is coerced into resigning as a result of the employer imposing unusually intolerable working conditions on the employee with the intention of forcing the employee to quit. In such cases, the employee’s resignation has legally deemed a firing rather than a voluntary resignation. Our California employment lawyers will explain. Call our firm at (800) 668-7984 or contact us online for further assistance. What is the Best Way to Prove a Constructive Discharge Claim in California? Establishing a claim of California constructive discharge requires the employee to prove “that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” Vasquez v. Franklin Real Estate Fund, Inc. Employees may not just “quit and sue” based on a charge of constructive discharge or termination. The facts must show that the employee was coerced or forced into quitting rather than simply making a rational choice to quit. “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” Id. The standard applied in determining whether or not there has been a constructive discharge in California is an objective one, and it is a question of fact – “whether a reasonable person faced with the allegedly intolerable employer actions or conditions would have no reasonable alternative except to quit.” Id. Contact Us Schedule your free consultation. California Constructive Discharge Examples Courts have held that the following types of employer conduct are not, on their own, enough to amount to constructive discharge or dismissal: The mere existence of a legal violation in the workplace. Id. An isolated instance of employment discrimination. Soules v. Cadam, Inc. A poor performance rating accompanied by a demotion and reduction in pay. Vasquez. Changing an instructor’s schedule from full-time to part-time. Scotch v. Art Institute of California. Reducing an employee’s salary and changing his or her annual bonus. King v. AC & R Advertising. When it turns out that the job the employee accepts is more difficult than or otherwise different from what the employee expected. Rochlis v. Walt Disney Co. Receiving criticism and being paid less than the employee believes he deserves. Id. However, courts have held that the following types of employer conduct could amount to constructive discharge in California: An employee was subjected to a violation of the California Labor Code (failure to reimburse business expenses) so egregious that it resulted in the employee being paid less than minimum wage, forcing the employee to divert a substantial amount his salary to pay his employers expenses and leaving the employee unable to pay basic living expenses. Vasquez. When an employee is subjected to a continuous pattern of discrimination by the employer on the basis of race, sex, age or national origin. Watson v. Nationwide Insurance Co. An employee was physically threatened on one occasion, harassed over a period of two weeks, and not given sufficient work instructions to perform his job. Ford v. Alfaro. An employee was subjected to three racial insults within a matter of hours and, upon quitting, was told, “You’d stay if you weren’t a sissy. If you were a man, you’d stay.” Watson (citing Bailey v. Binyon). An employee who had previously received only excellent performance ratings was subjected to citations for rule violations that other similarly situated employees did not receive, to trumped–up charges of inadequate job performance, and to abusive treatment and harassment, including being told in a four–hour meeting that she was a poor and incompetent supervisor. Watson. Contact a California Employment Lawyer for Help If you believe your employee rights have been violated or would like additional information about California constructive discharge, please contact us online or call (800) 668-7984 for help.
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Non-Compete Agreements in New York
Jul 20, 2020
| By Ottinger Employment Lawyers
| Read Time: 10 minutes
NEW YORK NON-COMPETE AGREEMENTS REVIEW & CONSULTATION Our firm will review your non-compete and meet with you via phone or video chat, answer your questions, review your non-compete agreement, and draft a written analysis to assist you in understanding your situation. For this review and consultation there will be a legal fee of $750. A Review & Consultation is often the first step. In many cases, we continue representing executives in negotiations or litigation. We have been assisting executives with non-compete issues since 1999. Submit the short form below to get started with a consultation. Important Information About Non-Compete Agreements in New York Subscribe to Our YouTube Channel New York non-compete agreements are widely misunderstood and many of them are unenforceable. This is because New York strongly disfavors non-compete agreements and courts will not enforce them unless a company can overcome a presumption of unenforceability. New York non-competition law attempts to strike a balance to protect an employer’s legitimate business interests, an employee’s ability to earn a living, and the public interest in free trade. Speak with an Employment Attorney About Your Non-Compete Agreement If you are looking for immediate help with a non-compete issue complete the short form below to get your free consultation started. We review your non-compete agreement and then meet with you over the phone. We will assess the agreement’s enforceability and suggest strategies. Call 347-492-1904 to speak with Robert Ottinger if you have questions regarding your non-compete agreement in New York. Locked into a Non-Compete in NY? Here are Five Ways Your Can Potentially Defeat Your New York Non-Compete Agreement Are you bound by a New York non-compete agreement? Are you trying to move from one employer to another in the same industry? A non-compete agreement can ruin your plans. How to Beat a Non-Compete Agreement in New York Robert Ottinger is an expert when it comes to non-compete agreements in New York. Watch the short video below to find out if your non-compete is enforceable. The Ultimate Guide for Executives This article provides a brief overview of tactics that can beat a non-compete agreement. If a non-compete agreement is causing problems for you, it may be possible to invalidate it or reduce its impact. We offer a non compete review & consultation to help you understand your options. First, a little background on New York non-compete agreements. These agreements were once limited to high-level company executives who had access to company trade secrets or who developed unique skills while employed by the company. Over the past decade, however, companies have started asking rank and file employees to sign non-compete agreements. As a result, employees at all levels find themselves constrained by these agreements. It’s estimated that one in five people today are bound by a non-compete clause. The overuse and abuse of non-compete agreements are also creating a backlash against them. Last year, New York Attorney General Eric Schneiderman prosecuted three companies for abusing non-compete agreements. According to the Attorney General, “unless an individual has highly unique skills or access to trade secrets, non-compete clauses have no place in a worker’s employment contract.” The tide has turned against non-compete agreements in New York. Courts are now more likely than ever to void these agreements. Contact Us Schedule your flat-rate consultation. What is a Non-Compete Agreement? A non-compete agreement is a clause typically inserted into an employment or separation agreement that prohibits a person from working for a competitor of their employer for a period of time. A non-compete agreement can limit your ability to move around in your industry. By signing one, you effectively agree that if you stop working for your employer, you will leave your industry and abandon your skills and experience for a period of time that typically ranges from six months to two years. Here is a typical non-compete agreement: “Employee shall not, whether directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business anywhere in the United States, except on behalf of the Company or with the company’s written consent: (a) engage in the Business of the Company or in any business that is in competition with the Business of the Company; (b) be employed by, consult for or provide any services to any person or entity that is engaged in the Business of the Company or is engaged in any business that is in competition with the Business of the Company; (c) solicit or accept the same or substantially related business of any customer or account of the Company or induce any customer or account of the Company to cease doing business with the Company or in any manner interfere with the goodwill and customer relationships of the Company.” The Legal Standard used to Evaluate New York Non-Compete Agreements In New York, courts disfavor non-compete agreements and enforce them only when necessary. Here are the main factors courts consider: non competes are enforced only when necessary to protect legitimate business interests such as trade secrets or special skills acquired during employment non compete agreements must be reasonable in time and geographic reach the agreement cannot be harmful to the general public the agreement must not be unreasonably burdensome on the employee. Courts apply the same standard to non-solicitation agreements. 5 Ways to Defeat a New York Non-Compete 1. FIRED WITHOUT CAUSE If your employer is not willing to employ you, courts generally will not enforce a non-compete agreement. This is almost black letter law in New York, so if you were fired without cause, your non-compete agreement is not enforceable. But there is no reason to feel trapped by that non-compete agreement. It’s not enforceable in this situation. A Common Scenario Today, most New York executives are bound by non-compete agreements. And many find themselves fired without cause or laid off at some point. They feel trapped by their non-compete agreement. They want to stay in their field because that is where […]
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