A California Employment Lawyer’s Arsenal of Laws that can Save a Person’s Job, Obtain Damages or Increase the Employee’s Severance Package


     By The Law Offices of R. Sebastian Gibson

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Never have there been so many tools for California Employment Lawyers to help the newly fired to either win damages for discrimination or retaliation, save their job or to obtain a better severance package. As discussed by this California Women’s Rights Attorney, the employee manual can be a gold mine in terms of assistance as are the laws enforced by the California Labor Commissioner and Federal Rules such as the Fair Pay Act of 2009.

In light of the increased number of people being laid off in California, from Orange County to San Diego, it is no surprise that there is an increase in the number of ex-employees looking either to file an employee discrimination lawsuit or who are seeking guidance of a California Employment lawyer to negotiate their severance package based upon claims of discrimination or retaliation. In areas such as the Palm Springs and Palm Desert area where unemployment is well above 12%, there is palpable fear among those who have already lost their jobs and those afraid of losing their jobs in the near future.

For employees who have been discriminated against and who might have previously been afraid to take such actions for fear of how it would affect their job hunting prospects, many now feel they have nothing to lose and need the safety net of even a few more weeks or months of severance pay when they are let go.

Fortunately, there have never have been so many tools for employment lawyers to help the newly fired either to win damages for discrimination or to seek a better severance package, including not only a longer period of pay benefits, but also other items, most important of which can be a longer period of health insurance benefits following the termination.

Some employees are filing class action lawsuits based on everything from age and sex discrimination to discrimination against veterans. Individual claims are being made for overtime pay that the employees never received and retaliation for whistle blowing or reporting harassment.

One of the best tools an employment lawyer has is often the employee’s company manual and other memos of the company which often lay out glowing descriptions of how fair the company will be in their employment practices. Such manuals often describe all of the types of actions which the company claims they will not tolerate including the various forms of harassment and how the company will never take a retaliatory action against anyone blowing the whistle on harassment at the company.

Such manuals provide a powerful tool to the employee and the employment lawyer to show the company exactly how they violated not only the law, but also the company’s own employment guidelines. Faced with such violations of the principles the company itself laid down and promised to their employees, it is difficult for such companies to argue that they didn’t realize how they were supposed to respond to an employee’s reports of harassment or that they didn’t know they couldn’t fire someone for making such reports.

Employees must keep in mind that under California law, complaints alleging discrimination or retaliation must be filed with the Division of Labor Standards Enforcement in California within six months of the alleged discriminatory or retaliatory action by an employer, except in certain circumstances.

Some of the laws enforced by the Labor Commissioner in the State of California which prohibit discrimination and retaliation include discrimination or retaliation for threatening to file a complaint with the Labor Commissioner, for taking time off to serve as a juror, be a witness in court or to attend judicial proceedings related to being a victim of a crime or related to a victim, for discharging victims of domestic violence, for taking time off to seek medical or psychological treatment related to domestic violence or a sexual assault, for taking time off to go to a child’s school at the request of a teacher, for disclosing his or her wages, for engaging in political activity, for being a whistle blower (not the real whistles), for being paid less than employees of a different sex for the same work unless based on a bona fide factor other than sex, or for complaining about safety or health conditions.

For California Employment Lawyers who are also Women’s Rights Lawyers, when President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 in late January, he remedied a great injustice and provided employment and women’s rights attorneys with yet another tool in our arsenal to fight for employee’s and women’s rights.

Now women in California and the rest of the nation have a law that gives them the ability to redress the wrong suffered upon them by society in allowing men to receive more money for the same work from an employer and limiting the rights of women to bring a claim for pay discrimination.

In the past, women were required to file suit within 180 days after first being paid unfairly, even if the discrimination of being paid less than male workers in the same jobs continued. And if a woman failed to discover that male workers were being paid more for the same work, a woman still could not hold her employer accountable if she didn’t learn of the unfairness and take action within 180 days of first being paid the lesser rate.

Under the Fair Pay Act of 2009 signed into law by President Obama, the statute of limitations of 180 days starts with each discriminatory paycheck, rather than when the employer starts to discriminate. So long as a woman in CA files her claim within 180 days of receiving any discriminatory paycheck, not just the first one, she is considered timely in bringing her claim.

An important aspect of the Act is that the effective date of the Act is retroactively set at May 28, 2007, which will allow it to apply to all compensation discrimination claims that have been filed on or after that date.

Women can sue for back pay awards for up to two years before she files her employment discrimination claim under Title VII of the Civil Rights Act of 1964. The Fair Pay Act of 2009 does not change the two-year back pay limit.

Under the Act, an unlawful practice occurs when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including each time wages, benefits or other compensation is paid.

California also has it’s own version of the Federal WARN Act which in certain circumstances requires 60 days warning before laying off workers. Under the 2003 California version of the Act, the requirement of 60 days warning applies to establishments with 75 or more employees who have been employed for at least 6 of the previous 12 months, who layoff or relocated 50 or more employees within a 30-day period. There are also various exceptions to the rule.

For the elderly employee laid off, an important ruling by the U.S. Supreme Court has given added protection to older workers. Elderly persons who file employment discrimination lawsuits no longer need to prove that an employer acted intentionally. It is enough that the employee can prove that the layoffs had a disparate effect on the elderly workers.

Layoffs of caregivers providing care to sick family members may also violate federal law.

And all of these tools are still in addition to the tools an employment litigation lawyer has against employers who practice discrimination based on sex, religion, race, age, or sexual orientation, or who subject their workers to a workplace that constitutes a hostile environment.

It is thus imperative that an employee being laid off who is provided with a separation agreement and release of all claims against his employer consult with an employment attorney to determine if there weren’t violations of any of these laws and others that can assist the employee and his or her attorney to negotiate a larger severance package.

ABOUT THE AUTHOR: R. Sebastian Gibson
Sebastian Gibson graduated cum laude at UCLA in 1972 and received law degrees in the U.S. and the U.K., graduating with an LL.B. magna cum laude from University College, Cardiff in Wales and a J.D. from the University of San Diego School of Law.

Mr. Gibson began his legal career in San Diego before practicing for years in London, England. Today, he has offices in Rancho Mirage and Palm Desert in the Palm Springs area, Newport Beach in Orange County, and the firm’s Of Counsel office is in Carlsbad, San Diego.

Sebastian Gibson is a California Employment and Women's Rights Lawyer representing clients in a wide variety of legal matters including employment discrimination, business, real estate, and personal injury matters throughout Southern California from San Diego, Orange County, Irvine, Anaheim, Huntington Beach, Santa Ana, Fullerton, Santa Monica, Ontario, Riverside, Laguna Beach, Los Angeles, Santa Barbara, Palm Springs, Palm Desert, and Newport Beach to Carlsbad.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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