Category Archives: Employment

Wrongful Termination — Former Teacher Awarded $3.5 Million

What a difference being a government employee makes. Most workers are at-will employees and can be terminated without cause on the whim of the employer, but teachers can only be terminated for cause. In the case of Lyndsey Wilcox v. Newark Valley Central School District, that distinction led to a huge verdict.

A jury on Wednesday awarded close to $3.5 million in damages to Wilcox, who alleged she was fired without cause. Wilcox was dating another teacher when it was discovered that he was acting inappropriately toward female students. He was ultimately convicted of sex offenses and sentenced to 30 years in prison. Wilcox successfully argued that she was only terminated for the sins of her boyfriend.

The jury deliberated for about three hours before returning with a verdict awarding Wilcox $351,990 for lost wages and $2.1 million for future lost earnings and $1 million for emotional distress.

Hostile Work Environment — The Law Does Not Promise a Utopian Workplace

I don’t often set forth an entire opinion, but the following case out of the Third Circuit provides a very good summary of what constitutes a “hostile work environment”, while at the same time demonstrating how the facts of a case are dissected and examined.  If you are contemplating a wrongful termination action in general or a hostile work environment action in particular, this case is well worth reading.

The takeaways are:  (1) a mean boss does not (necessarily) a hostile work environment make, and (2) if individual acts are not “hostile”, then even 14 of those acts will not create a hostile work environment.

Continue reading

Former Apple Employee Sues for Wrongful Termination

Here is a interesting wrongful termination action, in that it illustrates a couple of basic points of wrongful termination and should prove to be very informative on the law as it proceeds.

Wayne Goodrich is a former employee of Apple. As an at-will employee, he could of course be terminated without cause. In December 2011 he was terminated by Apple for “business reasons”, and told that the termination had nothing to do with his job performance. Goodrich claims that was a wrongful termination in violation of contract because he was not an at-will employee. He asserts that Steve Jobs gave him a job for life. Goodrich claims that in 2005, during a one-on-one meeting with Steve Jobs, Jobs told him that he would always have a job.

Steve Jobs is dead, and there were no witnesses to the conversation, so we must rely entirely on what Goodrich alleges was said during the conversation. Aside from that problem with proof, Goodrich’s claim will fail for the following reasons.

Goodrich began his job at Apple in 1998. He doesn’t claim that he had a job for life at the time he was hired, but rather that the contract was created by the 2005 statement by Jobs. Under basic contract principles, a contract requires mutual consideration. Goodrich was already working at Apple at the time of the statement, so what did Apple receive in return for this promise of life time employment? Thus, under basic contract principles, the claim fails.

There is a concept called promissory estoppel, which provides the contract consideration if the plaintiff can show that the defendant knew he was relying to his detriment. In other words, if Goodrich had gone to Jobs and informed him that he was leaving to take a job at HP for a much higher salary, and Jobs had said, “don’t take the job at HP, stay here where you will always have a job”, then that detrimental reliance in turning down the HP job could provide the consideration. However, as far as I know, Goodrich is making no such claim.

The other fatal flaw in Goodrich’s case is the wording of the alleged statement. If an employee is going to claim that they were given a job for life, then the terms of that “lifetime job contract” have to be sufficiently certain to be enforceable.

Assume that Jobs said to Goodrich, “Wayne, you’re my guy. I can’t imagine running this company without you. You will always have a job at Apple.”

What does that mean? If Goodrich stopped coming to work and sat at home watching Jerry Springer, would he still have a job for life at Apple? No, I’m sure even Goodrich would stipulate that there were circumstances for which he could be fired. He would probably assert that he could only be fired for cause. But what if the cause is that his job is eliminated, or the company is restructured? Or what if Jobs meant that you’ll always have a job while I’m here? And what about the reverse? Was Goodrich required to stay there for life? Did Jobs really mean that Apple was committed to Goodrich for life, but Goodrich was free to shop around his services to see if he could make more money? That seems unfair and unlikely.

The point is, that simple statement by Jobs is just too uncertain to be enforced. There are circumstances where an employer can transmute an at-will employee into an employee who can only be terminated for cause. We have prevailed on a number of cases on that basis. But based on what I know of this case, claiming a job for life just will not fly. It should also be noted that Steve Jobs himself was fired by Apple, although he was eventually brought back.

We’ll watch this case develop and see if I am prescient. Here is a more detailed article about the action against apple.

Don’t Be Blind to the Signs You are About to be Terminated

I feel the need to vent.

I’ve received three calls today from long-term employees who were fired out of the blue and have no idea what they are going to do with themselves. Again I say it. Never stop making yourself more employable, and keep your eyes open for the writing on the wall that you may be about to lose your job.

I’ve written before about how you must continually be improving your employability, so this time I will focus on how to recognize the warning signs that you may be getting the boot.

The company implements extreme cost-cutting measures.

First understand that the signs may not have anything to do with you, but rather the overall economic health of the company. If you see the company is struggling, then you should assume that a reduction of the staff will soon follow.

In the traditional office environment, things like overtime, company lunches, free soft drinks and other perks will disappear. In the retail setting, just look at the shelves. A struggling store will cut back on inventory. There will be a hiring freeze, and the company could be encouraging a staff reduction with severance packages.

You have seemingly become incompetent.

Alternatively, the signs could have nothing to do with the economic health of the company, but rather how you are suddenly being treated.

The vast majority of terminations are not wrongful under the law due to the at-will employment presumption. Nonetheless, that does not stop employees from suing for wrongful termination anyway, and those actions are costly to the company. Therefore, the company will want to build a package on you so that if you do sue, there is a paper trial showing that you were incompetent in your job. To that end, the following acts are red flags that you are being papered. Continue reading

Judge Upholds Termination Because “Lactation is not Pregnancy”

A judge in Houston has ruled in favor of an employer who allegedly fired a woman who wanted to use the bathroom to breast-pump.

Case facts are never black and white, and there are always complicating factors. Here, there was apparently some issue as to whether the employee abandoned her job, but the ruling of the judge is still hard to fathom.

The EEOC filed a complaint on behalf of Donnicia Venters against debt collection agency Houston Funding. Venters alleged that the company violated Title VII of the Civil Rights Act. Since only women can currently get pregnant, Title VII makes it illegal to discriminate “because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth” since by definition those issues would only arise as to women.

However, Title VII doesn’t say anything about lactation, so Judge Lynn Hughes found that the lawsuit was not recognized under Title VII and dismissed the lawsuit. Judge Hughes ruled that “firing someone because of lactation or breast-pumping is not sex discrimination.”

The ruling is, of course, utter nonsense. Lactation occurs because of childbirth, and if a mother cannot pump or nurse, she is at risk of mastitis.

Thankfully, California already has laws in place to protect a woman’s right to breastfeed and/or pump.

For a more detailed discussion of the case, go here, where you can also listen to a recording of what sounds like the employer talking to Venters, explaining how she has no protections (which, if you believe the judge, turned out to be correct), and how generous they are being by showing that she resigned her job (which, of course, denies her unemployment).

Will I Be Taxed on My Wrongful Termination Settlement?

Wrongful Termination TaxesBelieve it or not, there are still a few precious forms of “income” that are not taxed.  I’m not a tax attorney, but the last time I checked insurance proceeds are generally not taxed, nor are personal injury damages.

But what about a settlement from a wrongful termination action?

Back in the day, emotional distress damages were viewed as personal injury damages and were not taxed. Since the proceeds of a settlement are somewhat fungible (does the $100,000 represent loss of future income or emotional distress damages?), attorneys would put in the settlement that the damages were for emotional distress.

Those days are gone, and not only will you be taxed on your recovery, you will have payroll taxes withheld from any amount arising from back pay, future lost wages and any overtime or unpaid wage claims. In a sense it all comes out in the wash. Here’s what I mean. Let’s say you worked for a year and received your normal pay, with all of the concomitant withholdings. Now let’s say you were wrongfully terminated at the beginning of that year but found an even better job a year later, making your damages for that year the loss of wages (taking out of the equation for point of illustration all of the other damages to which you might be entitled). Your damages should be what you would have earned but for the wrongful termination, so you should not expect that these lost wages would be exempt from withholding.

However, the problem from a mental standpoint is that we all grouse about the amount that comes out of our checks every pay day, but when it all comes out of a settlement in one lump sum, then you really feel the pain.

So, what type of damages can you recover in a wrongful termination action, and what are the tax consequences? Rather than to reinvent the wheel, I direct your attention to this very fine summary of wrongful termination damages and tax consequences.

A Glimpse of the Future — Employees Publicly Airing Employment Grievances

Pregnancy Discrimination” — one of my firm’s practice areas — popped up in my Google Alerts, and the link took me the the YouTube video below. The video is of a visibly pregnant woman, complaining about how she suffered job discrimination at work due to her pregnancy.  People using YouTube videos to vent is nothing new, relatively speaking, but I found this video interesting for a couple of reasons.

First was the fact that it came up so readily in a search. A Google search for “pregnancy discrimination” yields 1,520,000 hits. The video was posted on January 9, 2012, and five days later I was seeing it in my Google Alerts. Thus, employers need to know that even a modest effort as in the case of this video could quickly put a business in a negative light.

The second point of note is how persuasive it is because of the calm manner it was presented.  The woman, who identifies herself only as “Angel”, is not screaming or making outrageous claims; she just sets forth the facts like she is making a closing argument at trial.

In this case, the employer will probably not receive any backlash.  The audio is pretty poor (Angel, the most important part of a video is the AUDIO!), it has fewer than 100 hits at the time I am writing this, and I don’t believe she ever identifies the employer, only her union.  Nonetheless, the video offers a valuable lesson.

An employer always ran the risk that a termination would result in a lawsuit, but could minimize the chances of a successful lawsuit by making certain all laws were followed AND that the termination did not have the appearance of impropriety. That second element is now especially important, because even if the employer can prevail in civil court, it might still be found guilty in the court of public opinion, with a concomitant impact on the bottom line.


How to Prove a Wrongful Termination Case in California

Here is a short decision by the Ninth Circuit Court of Appeals which serves to illustrate a couple of important legal principles regarding wrongful termination cases.

Most callers to our office are completely unaware of the at-will employment presumption, so they start from the false premise that the employer needs a reason to fire them. I explain that being fired for no reason does not make it a wrongful termination UNLESS the termination violates a public policy, like discrimination on the basis of race.

Sometimes the caller is so discouraged by that point that they say something like,

“Well then I guess employees have no rights in California, because if they can fire you for no reason, then how would you ever prove they did it out of discrimination?  No employer is ever going to say, “I’m firing you because you are black.’”

You’re right, caller, they probably won’t say that (although a surprising number of employers do say, “We’re firing you because you are pregnant.”).  But never did I say there was such a requirement. Most cases are proven with indirect evidence.

Look at the following case to see how attorneys prove wrongful termination based on discrimination. Continue reading

Don’t Bet Your Job on Whether You Know Better

Wrongful TerminationA case out of San Diego beautifully illustrates an issue that I frequently encounter with prospective clients, and provides a cautionary tale.

The fact pattern is so common that I have given it a name — the “‘I Know Better’ Syndrome”, or “Syndrome” for short.  The Syndrome arises when an employee takes a firm stand on some issue, to the point of refusing to do what they are told, believing that they have a better understanding of the law or company policies.

For example, the company policy will be that reimbursements can’t be made out of petty cash without a receipt. The boss tells an employee to reimburse another worker for a company lunch, and the employ refuses because the worker does not have a receipt. The boss writes her up for insubordination, but the employee will have none of that and goes to Human Resources to complain that she was written up when all she did was follow company policy. The next thing she knows, she is called in and terminated because her inflexible adherence to the strict letter of the policies has just become too much of an annoyance.

So it was in the San Diego case.  Here is a summary of the facts, as reported by Sign On San Diego. The Superior Court in San Diego is way behind the electronic curve so I could not review the actual court documents on file.  This summary is based on what was reported on Sign On San Diego and may not be entirely accurate. The point here is not the specific facts but the legal issue they illustrate.

Shari Watson, a Chula Vista council aide, was told to deposit a $2,400 check from Cox Communications, made out to “The City of Chula Vista/International Friendship Games”. This bothered Watson, because Cox had only agreed to a $1,000 sponsorship for the event.  Watson could not reconcile why Cox would be sending a check for $2,400.  Watson asked Deputy Mayor Rudy Ramirez if she could call Cox to see if the check was made out in error, but he told her to go ahead and deposit it and let the finance department work out any problems.

Freeze.  Right there is the moment in time that employees fall prey to the I Know Better Syndrome.  The supervisor has just given clear instructions, but the employee thinks she knows better.  Watson was absolutely, positively, 100% correct – the check was a mistake, and was meant for payment of city permits and not for the event – but that wasn’t really the issue. Ramirez had instructed her to deposit the check and let another department deal with the possible mistake, according to the article. When Watson refused to deposit the check, Ramirez had another employee deposit it, and the accounting snafu was eventually rectified. However, Ramirez fired Watson, allegedly for her “inability to take direction.”

Well that can’t be allowed to stand, right? Continue reading

10 Workplace Myths That Can Cost You Your Job

We spend a good part of our days at Morris & Stone explaining basic employment law to callers, and on occassion we get a caller who tells us we obviously don’t know what we are talking about, because what we are saying is contrary to one of their cherished myths about employment law.  The sad thing is, we usually get that type of call when the employee has relied on a given myth and been fired as a result.

One example of this is the myth that you should refuse to sign a performance review or disciplinary write-up if you don’t agree with what it contains.  Wrong.  The employer can then fire you for insubordination for refusing to sign.  Another popular one is that under the First Amendment, an employer can’t fire you for something you say, and certainly can’t do so for something you said on your own time.  Wrong.  The First Amendment provides only that the government can abridge your free speech; that restriction does not apply to an employer.  Then, of course, there is the grandaddy of them all, that an employer needs a reason to fire you.  Wrong.  If you are an at-will employee, your employer does not need a reason to fire you.

Now, nothing is black and white under the law.  Having just debunked the above three myths, I’ll show you exceptions.

Refusing to sign a false disciplinary memorandum:  You can’t refuse to sign the memo acknolwedging that you received it, but if it is worded in such a way that it is requiring you to admit to something you did not do, there’s nothing to keep you from adding a note beneath your signature stating the you do not admit to any wrongdoing, and you can send a memo to your own personnel file explaining your side.

The First Amendment protects your speech:  The First Amendment has nothing to do with it, but there are many circumstance where the employer can’t fire you for something you said if that speech itself is protected.  In other words, if the speech in question was you complaining about the company failing to pay the required overtime, or a complaint about safety, that would be protected.

At-will employment:  Your employer does not need a reason to fire you if you are an at-will employee, but you can’t be fired for a reason that violates public policy.  So if the boss fires you because you collect salt and pepper shakers in your cubicle, that’s fine.  There is no public policy that protects the collecting of salt and pepper shakers.  But if your boss fires you for wearing a yamaka, that’s probably religious discrimination and that is a violation of public policy.

Bottom line:  A little knowledge is just enough to get you in trouble.  I get calls every week from employees who have left work because the boss was shouting at them, and when they return they are fired.  They call, confident that they have a basis to sue because, after all, that was a “hostile work environment.”  That is not what is meant by a hostile work environment (although it could be).

Don’t believe me?  Check out that and other workplace myths in this article by U.S. World and News Report.