Employee Rights Attorney

Employee Rights Attorney

Mission Viejo, California

Q: I was laid off after my employer lost a major account. I was the first person to be hired to work on this account, am in good standing with my employer and have been told I will be rehired at the first opportunity.

However, I am upset because two men who were hired long after me have been retained to work on other accounts. I was told off the record by one of the managers that since I am married and my husband makes a good salary, management decided to lay me off and keep the two men.

Of course, I have no way of proving the manager stated this. Do I have any recourse?

A: “Discrimination based on your marital status is illegal. Your challenge is to prove that you were terminated for this improper reason.

“Call the manager who told you about the discrimination and arrange for a witness to listen in on your conversation. Try to get that manager to repeat what he said to you previously.

“Compare your job status with the two men who were retained. How do your performance statistics compare with theirs? Do you have charts from the company comparing sales productivity, especially for the months prior to the layoff?

“Examine the company handbook for layoff policies. Many employer handbooks give priority to longer tenured employees.

“Review your employee file-it’s your legal right-to see if it contains comments about why you were chosen for a layoff. You might arrive at the company unannounced and ask to review your file to reduce the chance that the company would “sanitize” the file.

“Try to determine any differences in formal evaluations that you and the two men received. You might ask them how they were rated on their most recent review. Your case would be strengthened greatly if you were rated higher than they, especially on recent performance reviews.

“If you feel that you have a case for discrimination because the company retained the two men, consider filing a claim with the state Department of Fair Employment and Housing.

“Be careful not to delay. The statute of limitations expires one year after the date of termination.”

Employee Rights Attorney

Mission Viejo, California

Martin Luther King would have turned over in his grave had he read Herdie Baisden’s article, “Advice for Unemployed Black Professionals” in a recent issue of this publication.

Mr. Baisden, a consultant hired by companies, essentially encourages employees to focus on future jobs, to eliminate anger toward their former employers, to not dwell on past job discrimination and to not pursue their rights against employers who discriminate against them.

As an attorney who exclusively represents employees, my advice to victims of job discrimination would be far different.

1. Understand your anger. Rather than simply “moving on” with your life, first understand the anger that causes such anxiety. If your termination really had nothing to do with improper discrimination, then Mr. Baisden’s advice would be appropriate. However, if discrimination was an issue, ignoring the injustice won’t solve the problem. If anything, failure to understand and demand your rights will cause you to suffer financial losses, further insecurities and a lack of confidence in subsequent employment.

2. Determine if there was discrimination. You need to find out whether discrimination was, in fact, involved in your employment or termination. To do so, you can consult self‑help books, available at any bookstore; the U.S. Equal Employment Opportunity Commission (which offers free advice, investigation and resolution of discrimination issues); state agencies that offer services similar to the EEOC’s; private support groups focusing on particular types of discrimination (such as race, sex or age); or local bar association or newspaper telephone help‑lines that review discrimination laws. Also, many attorneys offer free or inexpensive initial consultations to evaluate discrimination claims. Knowledge of your rights, or lack of them, will bring you power to control your feelings.

3. Determine the strength of your case. You’ll likely conclude that discrimination may have played a role in your employment problem or termination. Most people have a theoretical “case.” The key is whether it’s strong enough to justify the investment of time, money and stress necessary to pursue your rights. When evaluating a case, attorneys look at several factors:

a. Liability. Can you prove-through witnesses, biased statements, documentation or evidence of a “double standard”-that discrimination was a factor in an improper employment action against you?

b. Damages. Even if you’re confident you can win, it may not do any good if the employer’s improper actions have caused you little harm. Evaluate your current and future wage loss and emotional distress. A weak case of liability can be offset by a strong case of damages, and vice versa.

c. Sensitivity. Even without a lawsuit, cases that involve “sensitive” or embarrassing facts about the employer usually are resolved quickly.

d. Collectability. Even if you win your case and are awarded a large amount of money, it does you no good if you can’t collect it because the employer has financial problems.

e. Other factors. You must consider a long list of other important issues, many of which have nothing to do with law: such as your cash needs, re‑employment options, stress and potential for harm to your reputation.

4. Consider your options. Mr. Baisden’s article discourages you from pursuing a “long, drawn‑out legal battle” or trying to “milk” the employer because it distracts you from your real task of finding a new job. The real task should be both finding a new job and evaluating all your rights and options, as follows:

a. Employer’s internal grievance procedure. The employer’s system for addressing grievances, if any, is usually a prompt method you can follow. You should fully evaluate your case first to determine the appropriate settlement amount.

b. Informal negotiation. A disgruntled employee certainly can confront the employer personally and make a demand for a resolution. The worst the employer can do is say no. However, in most cases, the employee doesn’t really know what to ask for or how to “push the right buttons” to make things happen. Thus, he won’t be taken seriously.

c. Government agency. The EEOC and various state agencies provide investigation and resolution of discrimination complaints without charge. The disadvantage is that it often takes a year or more to go through the process and the agencies limit their investigation to this issue.

d. Small claims lawsuit. You don’t need a lawyer and the case can be wrapped up in a matter of weeks or months, but you’re limited to a nominal award, such as $5,000. Also, even if you win, the case can be appealed to a higher court with attorneys present.

e. Attorney negotiation. Most companies would prefer this option over resolving employee disputes through litigation. It’s estimated that the average cost to defend these types of cases in court is more than $100,000, giving the employer a strong incentive to resolve legitimate discrimination claims.

f. Lawsuit. Not all lawsuits are long, expensive and drawn‑out. Many courts throughout the country have prompt, expedited procedures. Also, prompt arbitration is becoming more popular. Some attorneys take these case on a contingent‑fee basis, in which most or all of the fee is paid only if you win.

g. Seek job transition income. The stress of financial pressures during job transition can be lessened by unemployment compensation, workers’ compensation or money recovered from pursuing your rights against the employer. Although nothing can eliminate the hurt of discrimination, money helps.

Back in the ’60s, Martin Luther King said his unforgettable words, “I have a dream.” Although we have a long way to go, much of his dream has become reality with new laws against discrimination. Ignoring your right to fight discrimination in the workplace makes his efforts meaningless. Understanding his dream and making it reality is the true cure for employment discrimination and the financial trauma and anger it causes.

Employee Rights Attorney

Mission Viejo, California

Q: “How do you prove age discrimination? If you’re applying for jobs and you sense you’re being screened out for being overqualified, is that legal? After a career in the private sector, I want to work in the public sector, but I’m afraid all people see is my age on the application. Is there a recourse?”

A: “Proving age discrimination is often very difficult, especially when hiring is involved. Discrimination against present employees is easier to prove because you often have a history of a ‘double standard,’ as well as willing witnesses to support your claim.

“On way to document where you stand, in a hiring situation, is to compare yourself with the other applicants for the position by striking up a conversation with them in the waiting room before or after your interview. Also, ask anyone you know who actually works for the employer to give you feedback about the identity and qualifications of the person who ultimately gets the job.

“If you think that the prospective employer is not considering you because of your age, you could file a complaint with the California Department of Fair Employment and Housing or the Federal Equal Employment Opportunity Commission. They have the ability to require the employer to provide all relevant information regarding the job. As an alternative, you can get further information by filing a lawsuit.

“You can try to prevent discrimination by not emphasizing age factors. Instead of putting down the dates of previous employment, you might consider being more general. If the application asks questions about your age or requires your photograph, from which age can be determined, the employer may be in violation of law. On the other hand, some employers, especially in government, might be required to ask you questions regarding your age, or for that matter race, to comply with affirmative action programs.

“Keep in mind that in regard to hiring or promotions, it may not make any difference whether the person selected for the job is, in factor, better qualified than you. The law protects your chance to try out for a position. If you have been denied that opportunity for discriminatory reasons, then you may recover damages.”

Employee Rights Attorney

Mission Viejo, California

Q: “I have been employed by a major corporation for over 30 years, the last 27 years in a management position in one department. I have received glowing annual performance ratings from various supervisors who have headed the department.

“Recently I found out that very quietly, without any announcement, about 50% of my peers in the department have been upgraded to the next highest management level. I am 57 years old. Everyone upgraded is younger and very few, if any could match my continuously high performance rating, my varied skills and experience level.

“This obvious choice of youth and disregard of over three decades of outstanding service clearly indicates an orchestrated effort by the current managers to force the ‘old timer’ into an early retirement.

“Are we talking age discrimination here? Are any labor laws broken? Do I have any legal recourse?”

A: “It is illegal to discriminate against any employee on the basis of age.

“Your challenge is to show that age was the reason that the others were promoted. You should evaluate all other possible factors for the promotion of those other employees. Compare your salaries, job responsibilities, and performance.

“Your case would be stronger if peers who were not promoted are in your age category. It hurts your case if some are younger.

“If it was an orchestrated effort to force you into retirement, however, it’s difficult to understand why such a move would have been made quietly, as you said. It would have made more sense for them to show favoritism outwardly, or to criticize you in your annual reviews.

“Regardless, if you can prove discrimination, you have legal recourse through the Department of Fair Employment and Housing, Equal Employment Opportunity Commission, the company’s internal grievance procedure, or an attorney.”

Employee Rights Attorney

Mission Viejo, California

Q: “I am more than four months’ pregnant. My doctor has put me on bed rest because of extremely high blood pressure, passing out, dizziness and vomiting. Can my employer terminate me because of “hardship to the company” or when I return to work, reduce my pay and job responsibilities-even if I have a full release from my doctor to return to work with no restriction?

“I am an accounting clerk. The company has about 50 employees but the company is moving out of state in May.”

A: “According to federal law, employers cannot discriminate against pregnant employees if the employer has 15 or more workers. According to state law, if the employer has at least five employees the employer cannot so discriminate and must give you up to four months of leave for a pregnancy related illness. Such leave does not need to be taken at one time.

“Additionally, other federal and state legislation has provided another four months’ worth of leave to care for yourself or your family. In total, a pregnant person might claim eight months of leave.

“Upon your return to your work, the employer must return you to your former job unless your job has been eliminated for reasons other than your leave or there is a reasonable hardship for the employer to hold your job open rather than leaving it either unfilled or filling it with temporary employees.

“The employer’s finances and size may be a factor in deciding what is in fact a reasonable hardship. If the employer cannot return you to your former job, you must be returned to a substantially similar job unless one is not available or if one is available, given such a job to you would again be a reasonable hardship. Often it is very difficult for the employer to justify not giving you such a job.

“If the company is moving out of the state, the employer has to give you the same opportunities to move with the company that it gives its other employees who are not pregnant.”

Employee Rights Attorney

Mission Viejo, California

Q: “I was employed by a company for 17 years in an executive management position, then demoted to a sales representative with a contract for an assigned territory.

“During the next nine months, the territory was reduced and there was not enough left to make a living. I was forced to look elsewhere for employment. No changes were made to the contract.

“This was also done to others in my age group, the late 50s and 60s. One man, whose wife was sick at home, had to resign after being assigned a territory starting 250 miles from his home. In some cases we were replaced by much younger personnel.

“The company made comments to others that we no longer fit their image, even though we performed well and their new personnel have not been able to match our sales figures.

“I have not been able to obtain a job that pays anywhere near what I had been earning, and have lost all benefits including medical, pension, etc. Is this type of action allowed?”

A: “It is illegal for an employer to discriminate against an employee based on age. The problem is proving it. The age discrimination laws in California apply only to those who are over the age of 40. There is no maximum age limit.

“It sounds like you have some good evidence of age discrimination. Age related statements that you ‘no longer fit their image’ show the company’s bias. Your good past performance and the poor performance of your replacements also are relevant, as well as any statistical information showing that the company is terminating older workers.

“You should either file an age claim with the State Department of Fair Employment or the Federal Equal Employment Opportunity Commission, or seek the advice of an attorney. If you fail to act within one year of your termination, the deadline for claiming your rights will pass.”

Employee Rights Attorney

Mission Viejo, California

Q: “My husband recently had two serious eye operations that required him to be absent from work for a total of four weeks over a six week period. He is in middle management at a construction/engineering company with well over 50 employees. He notified the personnel officer in writing of his surgeries and cleared the absences with his superiors.

“When he returned, his supervisor told him on Monday afternoon that if no work came in by the end of the week, he would not have a job. The company offered him no severance pay.

“He is 53 and has a spotless record for eight years with the firm. We have two young children and suffice it to say he and I are devastated. We feel that his company has violated both the letter and the spirit of the Family Leave Act of California and the U.S.

“Are we correct in these assumptions? If so, what are our options, including legal recourse?

A: “Both the California and federal family medical and leave acts require employers to reinstate an employee after returning from family care or medical leave to his or her former position or an equivalent position.

“But the employer can terminate your husband if he would have been laid off regardless of the leave.

“The employer also can refuse to reinstate a ‘key’ employee-one who receives a salary and ranks among the top 10% of the employees in pay. The company also can refuse to reinstate an employee if that is considered necessary to prevent substantial and grievous economic injury to the employer’s operations.

“There are certain notices that the employer must give to be able to use the ‘key’ employee exception.

“Evaluate if the lack of work excuse is simply a pretext. If your husband has more experience and tenure than his peers, perhaps other people should have been laid off instead.

“He also might be protected under other rules that prohibit discrimination. The employer might be liable, for example, if it decided to lay off your husband rather than attempting to make accommodations for his worsened eye condition.

“Have your case evaluated by an attorney and attempt a forced reinstatement, a reasonable settlement with termination, or a lawsuit. In the alternative, you could file a claim with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission for the medical leave or discrimination violations.”