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. Contact Us Schedule your free consultation. 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. 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. 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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103 Laws Protecting California Employees
Jun 17, 2020
| By Ottinger Employment Lawyers
| Read Time: 13 minutes
If you want to find a comprehensive list of laws protecting California employees, then this post is the place for you! Below you will find 103 laws that offer legal protection to employees working in California. If you are looking for a specific type of employment law, you can click on the categories listed below to jump to that section. Check it out! Wage and Hour Minimum Wage and Overtime IWC Order MW-2019: As of January 1, 2020, employers with 26 or more employees must pay their California employees $13 per hour. Additionally, employers with 25 or fewer employees must pay their California employees $12 per hour. Cal. Labor Code Section 510: Non-exempt employees must receive overtime for eight or more hours worked in a single day. Also, employers owe overtime for more than 40 hours worked in a workweek. Employers must pay double time for hours worked in excess of 12 in a day or eight on the seventh day of any workweek. Cal. Labor Code Section 1194: Any employee who is receiving less than the legal minimum or overtime wage can file a lawsuit. This lawsuit can be for unpaid wages, interest, and attorney’s fees. San Francisco Administrative Code, Section 12R (For San Francisco Employees): Any employee who performs two or more hours of work in a week for an employer in San Francisco is entitled to San Francisco’s specified minimum wage. As of July 1, 2020, this minimum wage will be $16.07. Meal and Rest Breaks Cal. Labor Code section 226.7: Non-exempt employees must receive rest breaks of at least 10 minutes for every four hours of work. If rest breaks are not provided, then an employer must pay the employee one hour of pay for each day that the rest break was not offered. Cal. Labor Code Section 512: Non-exempt employees that work more than six hours in a day must receive a meal period by the fifth hour. Additionally, this meal period must be at least 30 minutes long. Along with this, employers must offer additional meal periods for employees who work over 10 hours. Record-keeping Cal. Labor Code Section 1198.5: Any current or former California employee, with limited exceptions, has the right to receive a copy of his or her personnel records. 29 CFR Section 516.2: All employers must maintain accurate payroll records for their employees. For instance, these records must contain the employee’s rate of pay, hours worked, overtime hours, and deductions. Cal. Labor Code Section 226: An employer must provide employees with accurate and itemized wage statements. Cal. Labor Code Section 353: An employer must keep accurate records of all tips received. Cal. Labor Code Section 1174: Employers must keep an employee’s payroll records on file for no less than three years. Along with other information, these records must include the ages of any minors who worked for the employer. Los Angeles Ordinance No. 184320, section 188.03(B) (For Los Angeles Employees): Employers within the city of Los Angeles must maintain payroll records for four years. Cal. Labor Code Section 432.3: Employers cannot ask prospective employees for salary history. Employers must also offer prospective employees with pay scale information upon request. Wages Cal. Labor Code Section 2802: Employees are entitled to reimbursement of any necessary business-related expenses that they make. As a result, employers cannot pass operational costs onto their employees. Cal. Labor Code Section 201: Employers must pay wages immediately to an employee who is discharged. Cal. Labor Code Section 202: Employees who quit are owed wages within 72 hours after quitting. If the employee gave 72 hours’ notice of quitting, then the employer must pay the wages at the time that the employee quits. Cal. Labor Code Section 203: Employers must pay employees wages owed when their job ends. If they do not, the employee is entitled to payment for each day he or she is not paid owed wages. Additionally, this penalty continues for a maximum of 30 days, unless payment is submitted or legal actions commence. Cal. Labor Code Section 204: California employees, with some exceptions, must be paid at least twice a month. Also, employers must establish a regular payday for their employees. Cal. Labor Code Section 231: If an employer requires an employee to have a driver’s license for the job, then the employee must pay for any medical exams associated with obtaining that license. However, this does not apply to medical exams taken prior to the employee’s application. Cal. Labor Code Section 232(a): An employer cannot prevent an employee from disclosing the amount of his or her wages. Cal. Labor Code Section 351: Generally, an employer cannot withhold or take a portion of an employee’s tips. Cal. Labor Code Section 2800: An employer must compensate an employee for losses incurred due to the employer’s “want of ordinary care.” So, employers must take reasonable precautions to prevent an employee’s losses. Discrimination and Harassment General Protections Title VII of Civil Rights Act of 1964: This federal law makes it illegal for an employer to discriminate on the basis of race, color, national origin, sex, and/or religion. Cal. Gov. Code Section 12940(a): This law, also known as FEHA, offers protections from discrimination to certain classes of employees. Among these classes are race, religion, sexual orientation, physical or mental disability, gender identity, age, and veteran status. Cal. Gov. Code section 12940(j): An employer cannot harass an employee, applicant, or intern because the employee is a member of any of the protected classes in Section 12940(a). Cal. Gov. Code Section 12990: This law applies to workers contracted by the state for public work. These workers cannot be discriminated against for any of the protected classes listed in FEHA. Cal. Labor Code Section 1735: A contractor for public works projects cannot discriminate employment of people to work on public works on any basis listed in FEHA. Hiring and Firing Cal. Labor Code Section 432.7(a): An employer cannot use any record of arrest or detention that did not result in a conviction for […]
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