Stop Sexual Harassment

by Don D. Sessions

Employee Rights Attorney

Mission Viejo, California

Greg Buckner enjoyed working at the same company for 13 years, at least until he got a new supervisor. Then he was subjected to a regular pattern of racial comments, epithets and slurs. Finally, he was falsely accused of a minor theft and then fired. Fortunately, he was able to prove his case in court and ultimately recovered $122,500.

Sharon Maxwell worked at a convalescent hospital until she complained about unlawful abuse and neglect of the nursing staff. She was able to win her lawsuit worth more than $1.6 million.

Bruce Heverly was not so fortunate. He sued his employer for breach of contract and wrongful termination. After almost three and one‑half years of litigation in his attempt to prove his case, the jury not only decided for the employer, but also made Mr. Heverly responsible for their attorney’s fees of $116,000.

Why are some employees successful and others not? There are certainly many factors which determine the likelihood of success, including the extent of your damages and the willingness of your employer to cooperate in a settlement. However, the most important factor is whether or not you can prove in a convincing manner that your employer really did something wrong.

Facts of a particular case may be undisputed by the employer. The problem may be with different interpretations of the law. Often, however, a dispute does involve conflicting interpretations or versions of the circumstances of a dispute supposedly leading to liability. Here are some ways to prove your case or to show that your version of the facts is more credible.

1. Your Word Against Another’s

Don’t be discouraged if it’s just your word against that of another. This may mean that you have a 50‑50 chance of convincing a judge or jury. Many people will believe the word of a common employee before that of a supervisor or of an employer. This might very well be good enough.

2. Prove Only What You Need to Prove

Every claim has certain elements that must be established in order for you to win, at least in court. Concentrate on those factors instead of others that don’t make any difference.

3. Handbook

The employee handbook is the bible by which your actions should be governed. Know your own commitments and responsibilities, as well as those of your employer. See if they have violated their own written policy. Look particularly for promises of the employer regarding at‑will policy, fairness, progressive discipline, equal opportunity, “bumping rights,” and evaluations.

4. Supervisor’s Manual

A supervisor’s manual may set forth discipline or a termination procedure not otherwise contained in an employee’s handbook. Compare the stated procedure of the company with their actions in your situation.

5. Policy Memoranda

In addition to the supervisor’s manual and they employee handbook, these documents relate company policy. Ask the Human Resources Department for past copies. Match the policies with the company’s actions.

6. Practice

Evaluate the practice of the company in terms of its own actions with its stated policy. Your employer’s policy is often established through dealings with you and other employees in the past.

7. Performance Reviews

Did your employer promise to give you input? Were you to be given an annual review? See if your reviews are inconsistent with any disciplinary action taken against you. The blame for your layoff or termination should fall on the employer if they failed to give you required evaluations. Even if you were the worst performer and the appropriate one for layoff or termination, the fault may belong in part with your employer for neglecting to administer required performance reviews.

8. Comparison

Whether you are selected for layoff, termination or discipline, compare your performance and situation with those of others. It’s not fair to compare yourself with either the president of the company or a more junior employee. It is most appropriate to compare yourself with co‑workers at your level. See the chart below for the appropriate factors.

9. Statistics

This is more subtle evidence but sometimes very effective. If you are in a job where you can quantifiably compare your performance with others, such as in sales figures, keep those reports to justify your claims. Layoff figures which show unreasonably high impact on one particular protected group, such as one regarding age or race, are also effective proof.

10. Friendly Witnesses

Try to get statements from friendly witnesses while their memories are clear. If you wait too long, recollections fade and loyalties to you are not as strong. Witnesses of past events are important, but try to set up witnesses for current events as well. If you anticipate a problem, try to arrange to have a friend present to observe its occurrence.

11. Neutral Witnesses

Give neutral witnesses a reason to care about you. Emphasize that with their support a time‑consuming dispute may be averted. By giving a written statement now, more prolonged involvement through complex litigation will be avoided.

12. Unfriendly Witnesses

Obtain admissions from unfriendly witnesses by having someone other than yourself overhear their statements. They may not be aware of the need to “sanitize” their statements, especially before your attorney contacts them. Do your best to figure out how to get your boss or others to admit to things necessary to your case.

13. Eavesdropping

Try to improve any situation where it is your word against another’s. Consider meeting a neutral or unfriendly witness at lunch with one of your witnesses in the next booth to listen to your conversation. In the case of a phone conversation, have a witness listen to your side of the dialog and reaffirm aloud any critical statements made by the other party. If the other party speaks loudly enough, the witness may even be able to overhear their remarks from your receiver. Some states, but not all, make it illegal for a witness to listen in on a phone extension, even with your consent. Check with your attorney on this point.

14. Taping

Of course, one of the best methods is to tape statements by critical witnesses with their consent. Some states make it legal to tape another person without their consent, as long as one party to the conversation agrees. In some states, including California, this is illegal unless there is “no expectation of privacy” or the person doing the taping is doing so because there is a reasonable fear of physical violence or extortion by the other party. Eliminate any expectation of privacy by meeting the witness at a restaurant with others present. Not only could you have a live witness in the next booth, but you would be fully justified in most states to tape without liability. If necessary, excuse yourself to use the restroom to turn over your tape before it beeps at the end. That could be embarrassing. Ask your attorney about the law in your state before using this method.

15. Investigator

Consider hiring a private investigator who can call your former employer, truthfully identified as an employee service agent evaluating your resume and needing their input. Many employers will be very candid about an employee’s performance and reasons for termination. If they are blacklisting you or slandering your good name to others, especially to those whom they think are prospective employers, this might provide excellent proof of a case against them. Besides subjecting them to civil liability to you, slandering you in this regard is also a criminal violation in many states. In California, you might even be able to recover triple damages.

16. Timing

Try to establish proof of your case when it is easiest. Once the employer knows you have hired an attorney and have filed a lawsuit, their attorney will certainly give strict instructions to either keep their mouths shut or only repeat the company’s exact position. Too many employees and their lawyers wait until an actual lawsuit is filed before taking steps to obtain evidence, even then using only formal litigation methods to do so. Try to get that same evidence by informal means prior to the filing of a lawsuit. t may provide more candid and honest proof.

Bruce Heverly not only lost his case, but had to pay more than $100,000 in attorney’s fees because he failed to prove his claims. Proving your case may be easier than you thought. If you do it adequately, you may not even need to file a lawsuit to get your employer’s attention and resolve your claims. Start gathering your evidence as soon as a problem arises. Get as much as you can before you leave the company or file a lawsuit. With proper proof, you will recover all appropriate amounts due you either before litigation or through the court system as did Buckner and Maxwell. They did it. So can you.

Employee Rights Attorney

Mission Viejo, California

As an employee rights attorney, I have interviewed thousands of employees about their workplace rights. It has appeared to me that there is a general pattern of misconceptions. Here are the top ten myths at work as compared with reality.

Myth 1: “At-Will” Employment Allows an Employee to be Fired for Any Reason

This is what most employers want you to believe. In fact, most employee handbooks include specific language to this effect. You may have been required to sign an acknowledgment of such policies through the employee handbook or subsequent documentation. Historically, before employee rights laws were enacted, this myth was reality.

The “at-will” doctrine may have very limited effect. An employer simply does not have a right to fire an employee for “any reason.” It must be any “legal reason.” Even a contract acknowledging the right of the employer to fire an employee “at-will” is not valid if it is for a reason protected by state or federal law. An employer cannot fire an employee if it is based, at least in part, on discrimination, such as race, age, sex, or other protected class groups. An employer is also prohibited from retaliating against you because of a protected activity, such as whistle-blowing, jury duty, complaints about safety violation, refusal to do illegal activities, protected to medical for family leave rights or any other area that is protected by “public policy” based in statute or constitutional law.

Even though the right of the employer to fire an employee “at-will” is really limited to a contractual analysis, it is often not definite at all. Even though such doctrine may be implied, even by law, it can be rebutted by sufficient evidence and promises by the employer regarding permanency of employment or the need for “good cause” as a condition of termination. Many courts will look at longevity of employment, policies and practices of the employer regarding “cause” terminations, written policies and procedures and practices in the industry. Unless the employee handbook includes very specific language, an effective employee’s attorney can defeat the casual reference to at-will employment.

Myth 2: Overtime Compensation Does Not Apply to a Salaried Employee

Qualifications for overtime compensation is one of the most misunderstood doctrines in the workplace. Whether or not an employee is salaried is really not relevant. The key factor is the status of an employee as “exempt,” and not subject to overtime compensation rules, or “non-exempt” and subject to such rules.

State and federal rules sometimes differ. For example, California states that it will impose the law that is most favorable for the employee. Federal law states that an employee must be salaried to qualify for exempt status. This does not mean that being salaried makes you exempt. It is simply one of the requirements.

The determining points include the amount of discretion and independent judgment that must be exercised by the employee as well as whether or not there is management of at least two other employees more than fifty percent of the time. In my experience, in some industries in which employees are working extraordinary hours because they are salaried, half or more should be qualifying for overtime compensation. Anyone who has been terminated from employment and who has worked more than forty hours a week for the employer, should evaluate qualification for overtime compensation. The amount owed could exceed tens of thousands of dollars.

Additionally, this might give an employee the right to claim that the employer terminated the employee, at least in part, to avoid paying what should have lawfully been paid. This makes probably a wrongful termination claim as well.

Myth 3: Unemployment Compensation Applies to Layoffs Only

Many people think that they do not qualify for unemployment compensation because they have been fired. That simply is not the determining factor. Certainly layoffs are the traditionally means by which terminated employees obtain unemployment compensation. However, the real factor is whether or not the employee has lost the job due to their own “intentional misconduct.” This does not mean that the employee was negligent or doing a poor job. It had to be intentional and it had to be misconduct. If the employer can show that they warned an employee about a certain action and the employee subsequently intentionally violated that policy, the employer might win the battle. However, this is very difficult to do. Terminated employees should realize the strong probabilities of success with the unemployment compensation office.

Myth 4: Whistleblowers Have Few Rights

There are actually many laws, both on the federal and state level, that protect whistleblowers. Even though some states may require that the complaints be made to a government agency in order to trigger such rights, the trend of most states is to protect whistleblowers even if the employee complains solely to the company’s management. The issue then is proving that the complaint was actually made. There is less of a dispute if the complaint is done in writing.

Myth 5: Medical or Family Leave Allows for Permanent Replacement

According to the new federal laws regarding medical and family leave rights, an employer must hold your job open for a period up to three months without pay. Many states have rules that make the time period even longer. Obviously, during your absence, the employer must use temporary replacements to perform your work duties. You will have a legal claim against the employer if they turn those temporary replacements into permanent ones and deny you your job on your return.

Myth 6: Severance Pay is Required

Most everyone seems to thinks that the employer owes them at least two weeks of severance or one week for every year of employment. There is no law that requires severance pay at all. The only one that comes close to it is one that says that if an employer of a certain size closes down a facility that a certain amount of notice is required to be given and if it is not, the pay for such period must be given instead. If an employer has contractually made promises to the employees to give a certain amount of severance pay, then it needs to abide by such commitments.

Even though severance pay is not required, most smart employees will ask for it anyway. The attorney’s challenge is to increase whatever severance pay is offered and try to make it structured such that it is non-taxable.

Myth 7: Blacklisting is Difficult to Detect and Prevent

It is tough to find a new job especially when a former employer is not giving you the best of references. It is actually easy to find out if they are saying improper things about you. Have a friend call the former employer to ask about you. In the alternative, there are professional investigators, such as Documented Reference Check of Diamond Bar, California, that gives you a written, word for word transcription of the entire conversation, even under penalty of perjury. This can be very helpful to either recover your rights pursuant to slander or give a copy of it to the former employer to make sure it does not happen again. Usually a simple letter to the employer advising them that you know what they are doing and demanding that they cease such actions or face legal prosecution is sufficient to prevent it.

Myth 8: Harassment or Discrimination Has Few Effective Remedies

There are numerous state and federal laws preventing harassment and discrimination in the workplace. The problem is proving such improper actions. Rights are most effectively enforced when an employee conscientiously documents any evidences of a “double standard” between one protected class of employees and another. The more often such violations occur or the greater the impact they have on one employee or a group of employees, the better the case.

Additionally, many companies have internal policies governing complaints about discrimination or harassment. An appropriately drafted letter does much to eliminating or preventing discrimination or harassment.

Myth 9: Employee Rights Posters Are Not Required

There are numerous posters and notices about employee rights that employers are required by law to post or to give to employees. Believe it or not, in California, for example, there are fifteen or more posters that must be displayed in the workplace or given to the employees. If the employer fails to do so, it is not necessarily establish your case, but it is evidence of their neglect. In our law office, whether or not the employer displays the required posters, we use it against them. If they did display the poster and did not follow it, we say that they did not follow their own clearly stated policy. If they did not follow the poster and violated the rules, we say that they were negligent in advising their management and employees of the rules to follow which show further neglect and improper intent. Either way, the employees can benefit by this argument.

Myth 10: Employee Rights Options Are Few

Throughout most of history, the employer has been king. The boss establishes the work hours, the pay and the conditions.

In the late 1800’s, Upton Sinclair wrote a book called The Jungle that detailed the abuses of the slaughter houses in Detroit. This awoke the public consciousness to such an extent that many laws were soon thereafter passed protecting employees. Additionally, in the last twenty or thirty years or so, there had been additional laws enacted giving even greater protection for whistleblowers and victims of discrimination.

Needless to say, in today’s world, employees have more rights and protections than at any other time in history. The challenge is not so much employees’ rights, but their knowledge of such rights to use for the greatest impact. Bookstores offer a wide variety of employee rights books to inform employees effectively of their rights.

Employee Rights Attorney

Mission Viejo, California

As an employee rights attorney, the most popular question asked of me is, “Do I have a case?”

Most disgruntled present or former employees who believe an injustice has been done have in fact had legal rights violated and do indeed “have a case.” The question really is if such violation of rights justifies the time, effort, money and risk necessary to seek legal recourse. In other words, is the case good enough?

Evaluation of a case includes the following:

1. Liability. Employer responsibility for a wrong must be proven. In employment cases, such wrongs usually are (1) broken promises, (2) discrimination, or (3) retaliation for whistle‑blowing or refusal to commit illegal acts. Liability is established through employee handbooks, supervisors’ manuals, written information of employment terms, witnesses, performance appraisal, statistical data, or even one person’s word against another’s. Of course, a case in which there is a 90 percent chance to prove liability is better than one with a 10 percent chance. Comparison with other cases decided by the courts or statutory law clarifies the level of proof required and possible outcomes. Liability is the logical center of any case.

2. Damages. If liability is an appeal to logic or the brain, then damages seek out emotion or the heart. Damages determine the “tears” in a case, and the more tears there are, the better the case. Damages are shown by an employee’s wage loss, humiliation, lost opportunity, psychological trauma, and future impact. Sometimes the full extent of damages is not known for months or years after the wrongful event. A wrongfully terminated employee who finds a better job two months later does not have as convincing damages as one who may never find comparable employment.

3. Collectability. Understanding the employer is absolutely essential to the evaluation of an employee’s case. The employer must be financially stable enough to pay for a judgment if a case is won. It certainly does no good to recover a million‑dollar judgment if the employer is about to go bankrupt.

Unfortunately, most employment claims are not covered by the employer’s insurance. Because of this fact, many employers are more motivated to resolve these types of cases promptly because of the expense of litigation and risk of defeat. The expense of litigation and possible adverse judgment will come directly out of the employer’s own pocket.

Another factor is the attitude or willingness of the employer to resolve the dispute. Even if liability and damages are not substantial, a case may still be promptly resolved because of embarrassing or sensitive facts which could ruin an employer through bad publicity or through government sanctions. This is especially true in cases involving retaliation against an employee because of complaints about or refusal to do illegalities.

4. Conclusion. In reviewing all these factors, the very best case is one with high liability, damages, and collectability. Even if a case is not strong in all three areas, it does not necessarily mean that the case is not a good one. Many attorneys would be very interested in a case with virtually assured liability but questionable damages. Even though the recovery may be small, there will not be much of a fight to get it. If a case has questionable liability but very high damages, again, the case may be a very good one. Even though there may be problems in winning the case, if there is a recovery, it would be so substantial that it is worth the risk.

If any one of the three factors is extremely low, it may destroy the value of the case. The best recommendation for a wronged employee is to have rights immediately evaluated by an attorney who is familiar with these cases before the passage of any statute of limitations deadline so the proper course of action can be determined.

Employee Rights Attorney

Mission Viejo, California

Q: After I left the company where I served as an on site project manager, a subcontractor sued the company, its owners and five employees, including me, over an unpaid bill.

As a result, I have hired a lawyer at $265 an hour. I earned $33,60 an hour when I was with the company.

Working for a small company with limited assets, where employees are asked to sign contact agreements, vendor orders, etc., doesn’t seem to be worth it if you are subjected to this kind of nightmare.

A: “There’s no doubt that employees have to be very careful to avoid personal liability in acting for the employer.

“If the contract you signed states that you are personally guaranteeing the debt, then technically you may be responsible.

“The same thing applies if you sign payroll checks without doing the proper calculations for withholding.

“You might be personally responsible if the company does not eventually pay it.

“Employers have many reasons, however, to pay for your attorney’s fees in this situation. Certainly, they have a desire to maintain you as a “friendly” witness to protect them from liability.

“Additionally, according to California law, an employer is supposed to indemnify all expenses of the employee.

“Your situation may fall within that classification.

“Regardless of the employer’s responsibility, you may have been included in the lawsuit without proper justification.

“Just because you signed the contract does not mean that you are responsible if you are signing simply as your employer’s agent.

“Call the plaintiff’s attorneys and make them justify your involvement in the lawsuit.

“You or your attorney could threaten them with ‘malicious prosecution,’ for which they might be liable to you for not having an adequate reason for suing you.”

by Patrick Mortimer

Employee Rights Attorney

Mission Viejo, California

Q: I have worked for my boss for 12 years. I was told I was going to be considered an independent contractor instead of an employee. My boss gave me my schedule and said it pays half of my medical insurance. My accountant states that because I’m a professional, my boss can get away with this. What are my rights?

A: “There is no concrete rule to determine whether you would be considered an independent contractor, especially with the few facts presented in your situation,” says Patrick Mortimer, an attorney at Don D. Sessions of Don D. Sessions Law Corp. in Mission Viejo.

“Government agencies and the courts look to various factors to make the determination. Basically it is who has control of the means and manner for doing the job.

“To make this determination, most agencies and the court use factors such as right to control when, where, and how the work is done; what skill or expertise is required; who supplies the instruments, tools, and place; benefits; method of payment; parties’ understanding; hiring and firing of assistants; who realizes profits and losses, etc. That you are a professional is just one of the factors to be considered.

“You may be considered an independent contractor under some laws and an employee under others. Various state and federal laws may be involved.

“State agencies such as the Department of Fair Employment and Housing, Employment Development Department, Division of Labor Standards Enforcement and Franchise Tax Board may treat your situation differently. The same is true of federal agencies such as the Department of Labor, the Equal Employment Opportunities Commission and the Internal Revenue Service.”

Employee Rights Attorney

Mission Viejo, California

Q: I have been a temporary employee at a large company in the same position for nearly two years. I’ve heard that a temp can’t serve in the same position this long without being offered permanent employment. Is this true?

A: “There are no laws that strictly define when a temporary employee becomes a permanent employee.

“In some court cases, companies have been ordered to give temporary employees certain benefits enjoyed by permanent employees after a certain number of years. These cases are based on specific circumstances and do not apply to every situation.

“If you are a union member, a union contract may govern this issue. A government regulation may apply if you are a civil servant.

“Evaluate the company’s initial offer or letter to you, as well as relevant language in an employee handbook. It’s possible that the company may be governed by promises to you, or by a written policy detailing a time frame for making temporary employees permanent.

“You might also want to compare your treatment with that of other employees over the years. If the company is unduly delaying your transition, try to determine if it is for illegal reasons, such as discrimination.”

Employee Rights Attorney

Mission Viejo, California

Q: “Recently, I have seen several public sector employment applications with what appears to be new phrasing.

“The applications state that the applicant agrees to release current and previous employers from liability for damage that may result from the employers’ responses during background checks.

“I thought this practice or requiring applicants to sign away their rights was illegal. Do you have any suggestions on how to deal with these applications?”

A: “It is not unusual for an employer or any other party to require others to sign a release before entering into a relationship.

“It is certainly legal to require people to waive rights on past claims. It also is legal to obtain a limited release on certain claims that might arise in the future.

“Indeed, past employers may be reluctant to give candid responses without having you sign some sort of a release first.

“Releases of liability in the future are limited to negligent wrongful acts. They do not extend to intentional reckless or malicious types of violation. It also is not appropriate to release claims that you have a right to pursue by statute.

“If you refuse to sign such a release, you may give up employment opportunities, however. You might consider signing the release, then trying to monitor any impact on you.

“If you end up getting the job, you might be willing to overlook any negative comments. But if you don’t get the job, you may be concerned whether your former employer went beyond good faith opinions, making malicious or intentionally erroneous comments about you.

“If you feel the comments were malicious or intentionally incorrect, you might have a claim against your former employer, regardless of the release.”

Employee Rights Attorney

Mission Viejo, California

Q: “I have been employed by a large corporation for almost 13 years. Prior to obtaining my position, I had encountered age discrimination.

“While my present employer did not ask my age at the time I was interviewed nor was it requested on my application, I have continuously subtracted 11 years from my age on various documents, including 401(k), insurance and medical forms.

“When I reach 65 years of age (real age), assuming I have achieved the years of service required for retirement benefits (currently 20 years for full benefits), would I be entitled to these benefits if I choose to retire, even if official company records indicate that I am 11 years younger?”

A: “Employees who make significant misrepresentations to their employers face substantial risks, including being fired for dishonesty.

“This may not become a problem for you, however, if you are planning to leave the company anyway.

“As to retirement benefits, there probably would be no negative impact when you state your correct age to obtain the benefits, since most 401(k) plan contributions and benefits are not determined by age, according to Roger Renfro, an employee benefits attorney.

“If age was a factor in determining how much your employer contributed to the pension plan, however, you may be subject to some penalties.”