Tag Archives: Attorney

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).

An Emotional Distress Claim Should Not Be Undertaken Lightly

Wrongful Termination Attorney Emotional DistressThe case of Mallard v. Progressive Choice Ins. Co. beautifully illustrates a point I discuss with all clients who want to make an emotional distress claim, and provides a good stepping-off point to discuss the reality of damages in a wrongful termination case.

Sometimes I will get a call from a potential client within minutes after they were fired by their employer. They want to sue for wrongful termination and they want to sue NOW!

But what is the employee going to sue for? Union workers and government employees will sometimes sue to get their jobs back, but 99% of the time when someone calls me wanting to sue for wrongful termination, they want to sue for damages. They understand that even if they could sue to get their job back, it would not be a very pleasant environment to work. They want money.

So let’s look at that. Fifteen minutes after an employee has been fired, what damages have they suffered? When I ask the caller that question, they answer, “I was fired!” Yes, but what are your damages? “I was fired!”

Rather than to go on all day in this fashion, I explain. Damages are something you can put a dollar sign in front of. Being fired is not a damage, although obviously it can CAUSE damages. But 15 minutes after a termination, an ethical attorney should explain that there are no real damages at that point.

Let’s do the math. If the employee was making, say, $25 an hour, and they were fired two hours before their shift ended, then the damages at that moment they are calling me are $50, at least in terms of lost wages. But let’s carry it out a little. Let’s assume for our hypothetical that the employee had seen the writing on the wall and had already sent out some feelers for a new job before the axe fell. She makes a few calls, and a week later she starts a new job with the same title that pays $30 per hour with better benefits. What are her damages then?

Well, she went a week without being paid, so she lost $1,000 in wages. If the termination was wrongful, her old employer should at least cut her a check for $1,000 to reimburse her for the lost wages, right? But wait a second. Because of the termination, she will make $10,000 more for the year than if she hadn’t been fired, because now she is making $5 per hour more. Fair’s fair. If you thought her employer should pay her for what she lost as a result of the termination, then it is only fair that she should pay to the employer the money she gained as a result of the termination, right?

I’m speaking tongue in cheek of course, but I want you to think in terms of the real damage to our terminated employee. Last week I discussed all the damages that flow from a wrongful termination, and if you look at that list, assuming our employee did not suffer any setback to her career track, then there are no significant damages a week after termination.

“But what about emotional distress damages?”, the caller asks. That’s a valid question. If your employer wrongfully terminated you, you might have suffered some emotional distress damages, and those are recoverable on a wrongful termination claim. But an ethical attorney then needs to explain what you open yourself up to when you claim emotional distress.

Which leads us to today’s case review. Continue reading

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