7 search results found for “at-will”

Wrongful Termination in California

If You Feel You Have Been Wrongfully Terminated in California Read on For our 2021 Updated Guide California wrongful termination occurs whenever an employee is fired for an illegal reason. If this happens, you can sue your employer to recover damages. In some cases, the employer will have to pay significant extra penalties and costs. If you suspect that you were fired for an illegal reason, give us a call at (800) 668-7984 or send us an online message for a free consultation. Click here for information about our Los Angeles office. Address Phone Hours Ottinger Employment LawyersGas Tower555 W 5th St 35th FloorLos Angeles, CA 90013 213-204-8002 Mon-Fri: 9am-6pmSat-Sun: ClosedAdditional hours by request. Click here for information about our San Francisco office. Address Phone Hours Ottinger Employment Lawyers535 Mission St14th FloorSan Francisco, CA 94105 415-508-7786 Mon-Fri: 9am-6pmSat-Sun: ClosedAdditional hours by request. In the sections below, our California employment attorneys explain some of the common situations where termination is considered wrongful in California. California Wrongful Termination for Breach of Contract If you are not an at-will employee, it is likely because your employment agreement states you will only be terminated under certain conditions, such as “for good cause.” If you do have such an agreement, then it would be a wrongful termination for your employer to terminate your employment for some reason not stated in the agreement. And if your agreement states you will only be let go for “good cause,” then your employer’s stated reason for letting you go must fit the agreement’s description of what is considered good cause. Similarly, it would be a wrongful termination for your employer to state your termination was under the agreement if, in fact, the stated reason is merely a ruse for some other improper reason. Even if you do not have a written agreement with your employer, a court could still determine that you have an oral employment agreement or an implied contract for employment. An implied contract might be found to exist, for example, if your employer has some sort of written policy stating that the employer only fires employees “for good cause.” Breach of the Covenant of Good Faith and Fair Dealing If your employer fires you in a fundamentally unfair way, you may have a claim for wrongful termination on the basis that your employer has violated their “covenant of good faith and fair dealing.” In every contract, an “implied covenant of good faith and fair dealing” is imputed to both parties. This basically means that as part of any agreement, the parties are presumed to promise not to do anything unfair or in bad faith to deprive the other party of the benefits of the agreement. In the context of an employment relationship, this means a California employer has a basic obligation to cooperate with its employee to allow the employee to accomplish his or her duties. Lies, evasions, deliberate inaction, lack of communication, and other forms of interference or obstruction are all potential breaches of the covenant of good faith and fair dealing and, under certain circumstances, could give rise to a claim for wrongful termination in California. Retaliation for Complaints of Sexual Harassment Sexual harassment in the workplace is against the law. It is considered a form of prohibited discrimination. Your employer has an affirmative duty under California law to provide a workplace that is free of sexual harassment. Thus, it is illegal for your employer to fire you, or otherwise retaliate against you, for reporting or complaining about sexual harassment (whether directed at you or someone else), or for participating as a witness in, or instigating, a sexual harassment investigation or another proceeding. Contact Us Schedule your free consultation. Retaliation for Taking Family or Medical Leave Your employer cannot fire you for taking or inquiring about family medical leave. California law protects employees against retaliation by employers for using accrued sick leave for diagnosis, care or treatment of an existing health condition, or for preventative care for the employee or an employee’s family member.  California Labor Code §246.5. In fact, if you request to use paid sick leave and are fired within 30 days of your request to do so, this is presumed to be wrongful termination and the burden falls on your employer to prove that the reason for your termination was something other than your request for or use of sick leave. In addition, employers may not fire you for exercising your rights to family or medical leave under the Federal Medical Leave Act (FMLA) or the California Family Rights Act. If you work for an employer covered by one of these laws, you are entitled to take up to twelve weeks of leave for your own or a family member’s serious health condition. If you are terminated while on FMLA leave or within 90 days of returning from FMLA leave in California, again, the law will presume that this is a wrongful discharge, and the burden shifts to your employer to prove that they did not fire you for that reason. Whistleblower Retaliation Your employer may not terminate you for “whistleblowing” – reporting the employer’s violations of local, state or federal laws, rules or regulations. Nor may your employer terminate you for reporting unsafe working conditions.  Source: California Labor Code §1102.5 Retaliation for Complaining About Violations of California Wage and Hour Laws Employers in California may not fire or retaliate against you for the following: Complaining about or reporting unpaid wages, overtime pay, and/or unpaid meal and rest break violations, Filing a claim with the Department of Industrial Relations for unpaid wages, or for exercising any rights, whether on your own behalf or for other employees, that are protected by the California Labor Code.  Source: California Labor Code §98.6 Pregnancy Discrimination If you are fired because you are pregnant, planning to become pregnant, or dealing with pregnancy-related medical issues or complications of giving birth, this is considered a form of pregnancy-related discrimination in California. This is an unlawful termination under the California Fair Employment and Housing Act and the Pregnancy Discrimination […]

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Employment Law Blog

Your Employment Rights: A Guide for Workers

If you are reading this, it’s probably because you’re facing a work-related problem.  Maybe you’re worried that you’ve been discriminated against in the hiring process because of your race, gender, sexual orientation, or disability.  Maybe there’s a problem with the way your company has been treating you, how much they’ve been paying you, or how many hours they ask you to work.  Maybe you’ve just lost your job, and the reason doesn’t seem fair.  This guide is designed to help you access the information you need to understand your employment rights and protections under the United States’ employment laws.   In our opinion, the best kind of legal advice addresses problems before they get out of hand, keeping people in their jobs and out of the courtroom.  We hope this guide will give you the legal know-how necessary to resolve your workplace problems without too much fuss.  That said, we understand that some work-related issues cannot be resolved without help from legal professionals.  If that’s your situation, we hope that this guide will help you understand how you can use the law to protect your rights and defend your interests.   Employment law sets mediates relationship between companies and their workers. There are many different aspects to this relationship and, unfortunately, many different ways it can go wrong.  Click on the links below to find about more about your rights and protections in each area of employment. Employment At Will and Why You Have No Right to Your Job Many employees believe that the law protects them from being fired without notice or without reason.  Unfortunately, most employees are employed “at-will” meaning that they do not have the benefits of such protections.  If you are employed at-will (and most employees are), your employer can terminate you without cause, without notice, and at any time.  On the other hand, you also have the right to quit at any time, without giving a reason.  Generally, unless your employer has specified that you are not at-will, the law presumes that you are.  At-will employment is the rule, not the exception to it.   This can be discouraging news for employees who have just been laid off without explanation or without notice.  The good news is that even at-will employers do not have the right to fire their employees for illegal reasons (such as due to discrimination, or in retaliation).  If you believe your employer may have illegally fired you, please contact an attorney to discuss your options.   At-Will Employment (New York) At-Will Employment (San Francisco) For more information on at-will employment, including how to determine if you are not an at-will employee, please see these articles, or watch the video linked below: Fired at Will – You Can Be Fired for any Reason Employment Rights – Pay and Hours We all work for at least one reason — to get paid.  However, a lot of us don’t understand the laws that regulate our wages and the hours we work.  So, where do these regulations come from? The Fair Labor Standards Act, or FLSA, is the backbone of your right to fair pay for the hours that you work. The FLSA is a federal law, so it applies nationwide. This law establishes: the 40 hour week, the rules for overtime pay, the minimum wage, restrictions on child labor, equal pay for equal work done by a man or woman, and the standards for pay for time off work. State and local laws may provide greater degrees of protection, but the FLSA sets the minimum standard across the country.  These protections have some restrictions — such as on who qualifies for overtime pay or who qualifies as an “employee” (versus an independent contractor) — and we have elaborated on those questions on our practice area pages (linked below).  As always, if you have specific or detailed concerns about your particular situation, please don’t hesitate to contact an attorney for a free consultation to discuss your options. Explore these articles to learn more: Minimum Wage in San Francisco Overtime in New York Employment Rights – Discrimination Federal law prohibits employers from discriminating against their employees on the basis of things like race, national origin, sex, disability, etc.  State laws frequently provide additional or more specific protections.  For example, in California and New York, state law stipulates that employers cannot discriminate against people for being married or unmarried, or on the basis of their involvement with the military.  Unfortunately, discrimination still happens despite the existence of these laws. So what is discrimination? It can manifest itself in a number of different ways, but, basically, it includes any action that adversely impacts an employee or a job candidate  — such as firing, denying a promotion, or refusing to hire someone — and is also prejudicial or biased in motivation.  Sometimes, discrimination is fairly obvious.  At other times, discrimination can be subtle and unintentional; your employer may not realize that you are being impacted.  Either way, you have the right to pursue legal options to address the discrimination. For more information on discrimination and your legal protections, please see this article: Workplace Discrimination in New York and San Francisco Employment Rights – Family and Medical Leave Life happens, and sometimes you need to take time away from work to deal with the ups and downs that life brings. The Family and Medical Leave Act (or FMLA) is federal legislation that provides you with the right to take time off work for the family health issues, births, and adoptions that shape the lives of workers. This section explains when you are entitled to a leave of absence, what protections you have while on leave, and what to do if your employer does not uphold your rights. What events entitle you to family or medical leave? There are two situations when you are eligible for leave under the FMLA: When welcoming a new member to the family through a birth, adoption, or foster placement; and When you or a family member are facing serious health problems. Medical leave […]

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Employment Law Blog

California Wrongful Termination in Violation of Public Policy

California employment relationships are generally at-will, meaning either party may terminate the relationship with or without cause at any time and for any reason or no reason at all. However, there are exceptions, and an employer cannot terminate an employee for reasons that violate California public policy. What Does It Mean to Violate “Public Policy?” A wrongful termination that violates public policy occurs when an employer terminates an employee for exercising a legal right or obligation that affects the greater public. These cases generally fall into four categories whereby an employee is terminated for: (1) refusing to violate a statute; (2) performing a statutory obligation; (3) exercising a statutory right or privilege; or (4) reporting an alleged violation of a statute of public importance. For example, an employer cannot fire you for taking time off to serve on jury duty or for military service because these are statutory obligations (legal duties). Similarly, you cannot be terminated for refusing to commit fraud at the request of your employer (refusing to break the law), or for filing a wage complaint with the Labor Commissioner (exercising a statutory right). The public policy at issue must involve a matter that affects society at large rather than an interest personal to the employee or employer. It must also be set forth in California or federal law, and the policy must be fundamental, substantial, and well-established. The requirements for what qualifies as a violation of public policy are nuanced, so if you suspect you have been terminated for one of the above reasons, do not hesitate to contact an experienced California employment attorney. Examples of California Wrongful Termination in Violation of Public Policy Wrongful termination in violation of public policy can take many forms. If your employer terminated you for one of below reasons, you might have a claim for wrongful termination in violation of public policy: Reporting unsafe workplace practices or other OSHA violations. Reporting an employer’s refusal to pay wages on time, or refusal to pay minimum wage or overtime pay. Reporting employer violations of meal or rest break requirements. Engaging in political activities outside of work. Discrimination based on age, sexual orientation, or gender. Reporting or complaints of sexual harassment. Refusing to sign a covenant not to compete. Reporting employer violations of California or federal family or medical leave Refusing to engage in illegal conduct (e.g., fraud, embezzlement, forgery). Refusing to sign an agreement releasing an employer from liability for intentional acts. Retaliation for being a whistleblower (e.g., reporting securities fraud or fraud related to the use of public funds). Discussing wages with other employees. Retaliation for testifying in court as a witness. Keep in mind the alleged policy violation must affect the public-at-large, and an employee has two years from the time of termination to file a wrongful termination claim. Wrongful Termination Remedies In California, to successfully prove wrongful termination in violation of public policy, you must demonstrate: An employment relationship existed, which can include part-time or full-time employees but not independent contractors; The employer terminated the employee; employee resignation or nonrenewal of a contract is generally insufficient unless the employer forced the employee to resign; The employer’s reason for termination violated public policy and was a substantial motivating reason for the termination; and The employee suffered damages as a result of the termination. If an employee is successful in their wrongful termination suit, they may be entitled to compensatory damages (compensate for actual loses like lost wages, benefits, or emotional distress damages); punitive damages (meant to punish the wrongdoer rather than compensate the harmed party); or attorney fees and costs. If you believe you were fired in violation of public policy, contact us for a free consultation. The California wrongful termination attorneys of Ottinger Law have decades of experience providing personalized, zealous representation on behalf of their clients.

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Employment Law Blog

New York (NY) Wrongful Termination Laws

What NY workers need to know about their rights in cases of illegal retaliatory employment termination NY Wrongful termination occurs when an employee is fired for an illegal reason.   But NY wrongful terminations are rare.   This is because most all New York employees are employees-at-will.   An employee-at-will can be fired for any reason or no reason at all. Fairness is not required.   The only way to remove yourself from the employment-at-will category is to have an employment contract or company policy manual that limits your employers’ ability to fire you. NY Wrongful Termination Does Not Cover Unfair Firings Many firings are based on factual disputes. For example, an employee might be fired for being late to work when the employee actually was not late.   The employee who was fired for being late may feel that they were fired wrongfully.   But legally, the firing was not wrongful because companies are allowed to fire employees for any reason at all, even based on a misunderstanding. Being “let go” is never any fun, regardless of the reason.   It is especially painful if the reason was unfair or based on a misunderstanding of the facts. The fact is that it hurts and it is embarrassing, not to mention the stress and worry about finding another job in today’s marketplace.   Unfortunately, as much as you might want to seek revenge by filing a claim or cause of action against your former employer for wrongful termination, you may not have a leg to stand on because of the employment-at-will rule.   Often employees feel that they have been wronged simply because they have been loyal to the company for such a long time that they are entitled to more than just a goodbye. When Does NY Wrongful Termination Occur? NY Wrongful termination exists when the termination is unlawful.   This occurs if the termination breached an existing employment agreement or violated one of the laws that protect New York employees.   Employees have the right to be protected from the breach of any oral or written contractual agreement between the employer and employee, as well as protection against any illegal acts by the employer. For example, if the termination was not in accordance with the outlined procedures in the employment contract; if there was some form of employment discrimination involved regarding age, pregnancy, sex, disability, race, etc. or if there was some form of retaliation for reporting other acts of discrimination or violations of federal securities laws, there could be a claim or cause of action for NY wrongful termination. Every case is different and each is determined on the specific details and circumstances of the termination of the employer-employee relationship. Remedies for NY Wrongful Termination In NY wrongful termination cases, employees can recover any lost income that resulted from the illegal firing.   Other remedies such as punitive damages, compensation for emotional distress, legal fees and costs can also be recovered under certain laws.   For example, an employee fired due to a violation of the Family Medical Leave Act is entitled to recover double damages (twice the amount lost pay) as well as legal fees and costs.   Likewise, the New York City Human Rights Law provides employees with the right to collect unlimited punitive damages for any form of employment discrimination or sexual harassment. If you need help with a NY wrongful termination case, please contact The Ottinger Firm for a free consultation at 347-305-5427.

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Union Employee | Referral

If you are a Union Employee, contact your Union Representative. Due to the Collective Bargaining Agreement (CBA), Union Employees are not “at-will” employees, unlike most private-sector employees. This protects Union Members with rights other employees do not have. But because of the CBA, private attorneys are not allowed to represent Union Members in negotiations with their employer. Union clients must speak with their Union Representative in matters related to their employers. The information, which can be found at WorkPlaceFairness HERE, details what the CBA prohibits:  Management cannot reduce wages or change working conditions without first negotiating with the employees through their union representatives. Employees are entitled to vote on changes made to their contract. Your contract is for a set period of time and cannot be changed at will by a notice or announcement. There will be no favoritism or change of policy to suit the whim of management. Your union enforces your contract to make sure the employer abides by the rules. Your union enforces your contract through a grievance procedure in arbitration. ***

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Employment Law Blog

New York Severance Agreements

As a general rule, employment relationships in New York are at-will. Typically, that means you can be terminated for any reason (or even no reason), so long as your employer is not basing the decision on a discriminatory or retaliatory motive. Despite this general rule, many companies offer terminated executives New York  severance agreements to ease the transition for both parties. These payments are almost universally accompanied by extensive written agreements setting forth certain obligations and waiving certain rights. It is essential that executives understand what these agreements entail and how they can be improved.  If you need assistance with your agreement, contact our New York severance lawyers. Understanding New York Severance Agreements As stated above, employees generally have no legal entitlement to New York severance agreements. However, although there are no general legal rules, there are circumstances under which employers may be required to pay severance. In the first place, if you have signed an employment agreement—either at the outset of or at some stage during your employment—it may set an entitlement to severance.  In some cases, this payment is clearly defined, in others, the entitlement can is contingent on certain factors such as the length of employment or the circumstances surrounding the termination.  It is important to consult a lawyer to determine exactly what your employment agreement may entitle you to upon termination. Even if you don’t have an employment agreement, you may be entitled to a New York severance agreement to the extent your employer maintains clear policies of making payments on termination. Under many circumstances, such policies create a quasi or implied contractual right to New York severance agreements. Typically, under either an employment agreement or under an employer policy, an employee is only entitled to severance if they have been terminated. In other words, severance is rarely paid out after a resignation. Moreover, employers often do not have to pay severance, even if there is an agreement or policy, if an employee has been terminated for cause. The term cause is not precisely defined, but usually includes criminal convictions, gross negligence, or damaging the reputation of the Company. Again, legal advice is often essential in deciding whether an employer’s “cause” determination is accurate. How to Improve New York Severance Agreements? Once an employer has made an offer of severance, the natural question is whether it can be improved. There are several different strategies an executive should consider in approaching such a negotiation, either on behalf of herself or through an attorney. This will be a highly fact-specific judgment based on, among other factors, the circumstances of termination, the length of tenure, and potential legal claims. The most straightforward way to improve a New York severance agreement is to threaten potential litigation. Almost without exception, a severance agreement will include a waiver of the executive’s right to sue. Therefore, to the extent an executive has a viable legal claim against the employer, it is possible to argue that the amount of severance is not enough to compensate for the loss of that claim. However, because employment relationships are generally at-will, under many—if not most—circumstances, a terminated employee will not have a potential legal claim to bring. Threatening a former employer with frivolous litigation is a tactic that is very likely to backfire, as the threat is not only likely to be seen as aggressive, but also empty. Under such circumstances, it is generally better to consider a more conciliatory approach. The request for an increase in severance can instead be requested based on the length of service, the value the employee added to the organization, and the difficulties that may be associated with making a transition. Such arguments may not always work, but absent a compelling legal claim, they are more likely to be successful than threats. Finally, an executive should consider whether either the New York severance agreement or earlier employment agreements have restrictive covenants, such as covenants not to compete or not to solicit employees or clients. These clauses may be unenforceable if an executive has been terminated without cause, unless the employer offers some severance payment as consideration. To the extent the employer values these covenants, it may be a potential basis to increase the offer. How Else Can New York Severance Agreements Be Improved? There are many ways New York severance agreements can be improved beyond the bottom-line dollar value of the package. Each agreement is different, and it is therefore important to consult an employment attorney to get specific advice. Such potential areas for improvement include neutral employment references, agreements not to contest unemployment benefits, acceleration of unvested stock options, and outplacement services. Including such provisions may make the decision to accept a severance agreement easier even if the amount is not increased. If you have a question about New York severance agreements, contact us to arrange a consultation.

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Employment Law Blog

Severance Package Values in New York

Severance package values tend to track the health of the economy. During good times, companies typically offer more generous severance pay, but values drop during downturns.   When people need help the most, companies offer less. This is because companies themselves are often struggling to survive. So what should employees do to protect themselves? First, smart employees save money to create their own cash reserves. You cannot rely on your employer to help you, so help yourself by creating your own severance package with a big savings account. Instead of buying new cars or widescreen televisions, save some money. Second, be proactive with your career. If you sense that your job is in jeopardy, don’t wait to get fired – instead start an immediate and aggressive job search and find alternate employment. You never want to become unemployed. Today many companies will not even consider an applicant who is unemployed. Being unemployed today must be avoided at all costs – it can cause financial ruin. It is much easier to find a job while you still have one, so you know what to do. In certain cases, employees can negotiate substantial increases to their severance packages. These situations are generally limited to cases involving illegal conduct by the employer such as discrimination, sexual harassment, overtime pay violations and the like. For example, in a recent case we handled, our client was fired at the age of 64 after over 20 years of employment with the company and replaced by a substantially younger person. In that case, our client had a potential age discrimination case and we used this as leverage to negotiate a much better severance package. In another case, our client was fired soon after she was diagnosed with a serious disease and we used the threat of a disability discrimination case to enhance her severance pay offer. Most firings, however, are not illegal. This is because most everyone is an “at-will” employee who can be fired at any time for any reason or no reason at all. In these cases, employees have a tough time negotiating better deals because they have no leverage. So people today should not count on getting a fat severance package to get them through a period of unemployment. During these days of high unemployment, smart employees save money and take control of their careers. The best way to handle a severance package today is to avoid getting one by leaving an unstable job for a better one before you get fired. Please feel free to contact our firm if you have a question. We have been helping employees for over 20 years.

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