wrongful termination

Understanding Constructive Discharge and the Mixed-Motive Defense: A Case Review

August 3, 2023 | by Nassiri Law

At Nassiri Law Group, we are committed to representing employees who have faced discrimination and have been wrongfully terminated. We understand the complexities of employment law and strive to ensure that our clients’ rights are protected. In this blog post, we delve deeper into the intricacies of employment law, focusing on the concept of constructive discharge and the mixed-motive defense, through a recent case review.

What is Constructive Discharge?

Constructive discharge is a term that many may not be familiar with, but it plays a significant role in employment law. It occurs when an employer creates a work environment that is so intolerable that a reasonable employee would feel compelled to resign. This can include situations where an employee is subjected to workplace harassment, employment discrimination, or other forms of adverse treatment.

What Are California’s Employee Bereavement Rights?

July 2, 2023 | by Nassiri Law

The death of a loved one can feel like you’re being torn into two – with waves of intense, very difficult emotions washing over you at any moment. In the immediate aftermath of such a loss, people need a moment to breathe, be surrounded by others they love, and start the long process of healing. That’s where California employee bereavement rights kick in.

As our Los Angeles employment lawyers can explain, California law guarantees most employees up to 5 days of bereavement leave from work for the death of a qualifying family member (spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law). Employers are allowed to grant it for the loss of someone outside these categories with whom you were close, but they aren’t required to.

The law allows for five days for the death of each qualifying family member. So if you suddenly lose three of your close relatives – even if it happened all at once – you would be entitled to 15 days, rather than just 5. You have three months to use your bereavement leave, but it doesn’t have to be taken consecutively. That is, you could take a day or two immediately after, and the rest of the time to attend calling hours, the funeral, etc.

Bereavement leave can be paid or unpaid; It will be up to the employer’s policy. If the company has an existing bereavement policy that offers fewer than 5 days of paid leave, the employee can receive pay for the number of days in the existing policy, but the rest might not be paid. If there leave isn’t paid, employees can use accrued paid leave to cover unpaid days.

Proof of death can be required within 30 days. Acceptable forms include a death certificate, obituary, or some other written proof of your loved one’s death, burial, or memorial services. You’re entitled to expect confidentiality regarding these requests. Further, taking bereavement leave won’t adversely impact other types of protected work leave.

Similar to the California Family Rights Act (CFRA), it is against the law for an employer to refuse to hire, discharge, demote, fine, suspend, expel, or discriminate against an employee exercising their right to bereavement leave. They also can’t retaliate against an employee providing information or testimony about another person’s bereavement leave in any inquiry related to the employer’s possible violations of the law. Continue Reading ›

How Employers Can Prevent California Workplace Retaliation

June 16, 2023 | by Nassiri Law

As longtime advocates for fairness in the workplace, our Los Angeles employment attorneys primarily devote our energies to representing employees on the receiving end of inequity on-the-job. But there’s also value in explaining to employers how they can sidestep some of the most common issues that lead to California employment lawsuits.

Unlawful workplace retaliation is one of the most common sources of legal claims. It’s also potentially one of the costliest for employers. In a single recent years, nearly 6 in 10 claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) alleged retaliation, often in conjunction with other claims. It is the No. 1 type of employment discrimination alleged nationally.

What is Retaliation in an Employment Setting?

The term “retaliation” can have a few different meanings in an employment context, but it’s only illegal when it crosses the boundaries of state and federal fair employment laws.

In this context, retaliation occurs when an employer initiates a materially adverse action because an applicant or employee asserts or engages in rights that are protected under equal employment opportunity statutes. Such rights are referred to as “protected activities.”

Examples of protected activities would be things like:

Refusing to comply with a directive the employee believes to be discriminatory. (This requires only a good faith belief by the employee that the conduct in question is unlawful or could become unlawful if repeated. They don’t have to prove the underlying act was, in fact, discrimination.)
Filing a complaint of workplace discrimination (or indicating an intention to do so) regarding one’s self or other employees.
Refusing sexually-charged advances at work or intervening to protect others at work.
Requesting reasonable accommodations, as allowed by law, for one’s disability or religion.
Filing a complaint with management about equal employment disparities.
Gathering evidence in support of or preparation for a potential equal employment opportunity claim.

(This is not an exhaustive list, but provides a general sense of what might constitute as a protected activity as referenced in retaliation statutes.) Continue Reading ›

Myths About California Wrongful Termination Claims

April 18, 2023 | by Nassiri Law

As Los Angeles employment lawyers, we’re aware of a number of significant misconceptions that people have regarding wrongful termination claims.

It is not simply enough that a firing be unfair or rooted in reasons that are unfounded. In order for California wrongful termination claims to prevail, the termination must have occurred in contrast to federal or state anti-discrimination laws, labor laws, whistleblower laws, or employment contracts. These are not as easy to prove as people think.

We recognize that many aspects of employment law are convoluted, which contributes to the confusion. Here, we want to break down some of the top California wrongful termination claim myths that are most pervasive.

Myth: Wrongful termination applies to any unfair firing.

California, like so many other states, allows for at-will employment. That means you can be fired at any time and for any reason – or none at all. It doesn’t have to be fair. The boss’s son might get away with talking on his cell phone during work hours – but you get fired for the same offense. That’s not necessarily illegal. Where it crosses the legal line (usually) is when it’s discriminatory – on the basis of one’s gender, race, religion, nationality, ethnicity, disability, age, etc. It’s also illegal to fire workers for blowing the whistle on unsafe practices or in violation of the terms of one’s employment contract.

Myth: Only women and minorities can sue for wrongful termination.

Not so. Any person who belongs to a protected class can sue if they are being treated unfairly on the basis of there presence in that class or suspected presence or association with someone else in that class. For example, if a person is fired because they married someone who is Jewish, they may have a claim for employment discrimination and/or wrongful termination. Also, any worker whose employment contract was violated in the course of that firing may have a claim as well. If you cooperate with an OSHA investigation, you can’t be legally fired for that, as it would be considered retaliation. Continue Reading ›

“Can They Fire Me on Parental Leave?” L.A. Employment Lawyer Answers

February 23, 2023 | by Nassiri Law

As an L.A. employment lawyer, we’ve fielded a fair number of questions about the legality of lay-offs or termination of an employee who is on maternity leave or parental leave.

The answer isn’t always cut-and-dried, depending a fair bit on the specific circumstances of the case.

Of course, losing a job in general is never an easy prospect. But firing or laying off someone who is on parental leave is arguably all kinds of wrong from a moral perspective – especially because employees in this situation truly need both money and health care during this time. One might even consider it “emotional robbery.” Those first few days, weeks, and months bonding with a new baby are priceless. If the parent is suddenly overwhelmed with stress over finances and healthcare, they’re emotional and physical energy will be spent elsewhere – and that’s time they’ll never get back. It can also have serious health consequences, especially for employees who have just given birth.

All this makes it very risky for a company’s reputation and brand to engage in such practices. And yet, some still do. Whether that’s the basis for a successful California employment lawsuit will hinge on a few different factors.

Rights of Employees on Parental Leave

There are federal and state laws that protect the rights of employees on parental leave. California has some of the strongest state-level parental leave protections.

California (as well as a handful of other states) requires paid parental leave – up to 8 weeks of partial wage replacement to eligible workers. It can be used for new parents and/or within 1 year of a child’s birth or foster care placement or adoption. Pregnant mothers are also given up to 4 months of job-protected disability leave prior to parental leave once the child is born. The California Paid Family Leave law (available to workers at companies with 20+ employees) is not solely for new parents, but can also be used to care for a seriously ill close family member. Continue Reading ›

Federal Employment Discrimination Lawsuit May Require Proof of Disparate Treatment of “Similarly Situated” Co-Worker

February 3, 2023 | by Nassiri Law

When it comes to establishing discrimination and/or wrongful termination, it’s worth noting that some unique challenges can arise when trying to establish the adverse employment action was discriminatory. As our Los Angeles employment attorneys can explain, some legal arguments require plaintiffs to identify a “similarly situated” individual – someone with the same or similar job – who is outside the protected class, engaged in the same conduct, yet was treated more favorably than the plaintiff.

If the plaintiff is a manager, they may need to find evidence of other managers being given more favorable treatment. If they’re drivers, they may need to show evidence other drivers (not supervisors) were treated better. If they’re teachers, they may need to show other teachers (not principals or secretaries) being treated more favorably.

This was underscored in a recent federal employment lawsuit alleging racial discrimination and wrongful termination of a UPS supervisor.

Federal Racial Discrimination/Wrongful Termination Employment Lawsuit After Drug Test

After 20 years of employment, an on-road supervisor who is Black was fired after testing positive for cocaine in a random drug test. He filed an employment lawsuit alleging racial discrimination and wrongful termination, citing violations of both state and federal law. He indicated his direct supervisor told him that his superior had “racist tendencies” and had made racist comments about Black people to other employees.

The federal district trial court in New Jersey granted summary judgment in favor of the employer. The case, Langley v. UPS, then went to the U.S. Court of Appeals for the Third Circuit. The appellate court also affirmed the ruling in favor of the employer. In its explanation, the court detailed the factual background: Continue Reading ›

Bill Promises California Employee Protections for Off-the-Clock Cannabis Use

September 2, 2022 | by Nassiri Law

Despite the 2016 legalization of recreational cannabis use in California, it continues to be a sticking point where employment law is concerned. An increasing number of employers are turning a blind eye to what workers indulge in outside working hours (if only because good help is increasingly hard to find). But now, workers may have the benefit of state law on their side – if AB 2188 is passed.

As our Los Angeles employment lawyers can explain, there is currently little in the way to protect employees from job policies that prohibit off-the-clock marijuana use. Of course, on-the-clock intoxication is always going to be a big no-no, but proving cannabis intoxication is usually tough, given the length of time marijuana stays in the system/shows up in chemical testing. It’s not like alcohol, which quickly cycles through the body – making a high level of it in blood, breath, or urine samples a strong indicator of recent use/intoxication. Workers employed by companies that require drug testing may find themselves out-of-a-job – even if they never used the substance at work.

AB 2188 would amend the California Fair Employment and Housing Act’s section on employment discrimination, making it an illegal employment practice to discriminate against an employee or respective employee based on their use of cannabis outside of the workplace premises and working hours. The bill would make violation of this provision grounds for a civil employment lawsuit, with remedies similar to that of any other California employment discrimination claim.

Although the bill would add a layer of protection for workers, it would also shield employers who wish to maintain a drug-free work environment. AB 2188 would not protect workers from adverse employment action if they possessed, were impaired by, or used cannabis on-the-job or at the employer’s premises. Workers would not be free to take their weed to work, use it onsite, or show up to work impaired. Continue Reading ›

When Can I Sue for Wrongful Termination in California?

April 25, 2022 | by Nassiri Law

Wrongful termination in California is a situation wherein a worker is laid off or fired for a reason that violates state or federal law or public policy.

As our Orange County employment attorneys can explain, most wrongful terminations stem from firing that resulted from:

Violation of an implied contract.
Whistleblower activities.
Violations of public policy.
Exercising rights under the Fair Employment and Housing Act (FEHA).
Filing a workers’ compensation claim or reporting a work injury.
WARN Act violations (involving mass layoffs).
Retaliation for workers exercising rights under the Family Medical Leave Act (FMLA) or state employee leave laws.

Workers who successfully bring a wrongful termination lawsuit may be entitled to collect lost wages and benefits, back pay, compensation for emotional distress, attorney’s fees, and punitive damages (the last specifically awarded for gross misconduct by an employer).

How Do I Know if My Firing Was an Exception to California’s At-Will Employment Law?

When we say that wrongful termination lawsuits stem from illegitimate reasons, we’re specifically referring to unlawful reasons. The reality is that as an at-will employment state, an employer can legally fire you for no reason at all. Just the same way an employee can quit for any reason at all.

However, if you get fired for reasons that have something to do with your race, ethnicity, nationality, gender, religion, color, sexual orientation, gender identity, age (if over 40), disability, marital status, pregnancy (or related condition), medical condition, being a member of the military or a victim of domestic violence/stalking, etc. – that is what amounts to a wrongful termination under federal and/or state laws. (Cities may have their own additional categories that are protected under law.)

Similarly, one can sue for wrongful termination if the termination occurred in violation of an implied contract. Employers create implied contracts by doing things like issuing employee handbooks that list specific causes for termination or telling an employee they won’t be fired unless they engage in certain behavior.

Another exception to at-will employment is when termination is in violation of public policy. The best example of this would be an employee who refuses to follow an employer’s order to break the law and is fired for it. That individual would have a case for public policy wrongful termination. Similarly, companies can’t fire workers for telling police the employer broke the law or for reporting unsafe working conditions to an agency like OSHA.

Workers can’t be fired in retaliation for reporting or cooperating with a case involving harassment, discrimination, criminal wrongdoing, wage and hour violations, or safety violations. Continue Reading ›

California Supreme Court Clarifies Worker Retaliation Lawsuit Proof Burden

February 28, 2022 | by Nassiri Law

Claims of whistleblower retaliation filed under labor laws in California are going to be weighed by the standard set forth in that law, rather than the more stringent burden-shifting test that was laid out in the 1973 case of McDonnell Douglas Corp. v. Green. This was the recent ruling of the California Supreme Court in the case of Lawson v. PPG Architectural Finishes, Inc.

As our Riverside worker retaliation lawyers can explain, Labor Code section 1102.5 stipulates that employers can’t make or enforce any rule that prevents an employee from whistleblowing. Employers also cannot retaliate against a worker for whistleblowing. Whistleblowing is defined as the disclosure of information to a government or law enforcement agency when the employee has reason to believe the disclosure reveals a violation of state or federal law by the company.

In the following provision of the law, Labor Code section 1102.6, which went into effect in 2004, lawmakers stipulated that once the worker establishes a prima facie case that retaliation for whistleblowing was at least one contributing factor of the negative employment action, the proof burden is then on the employer, who must prove by clear and convincing evidence it would have happened for legitimate, independent reasons, regardless of the employee’s whistleblowing.

But despite this seemingly straightforward law, some California courts weighing whistleblower retaliation cases have been instead applying the proof burden set in the McDonnell Douglas ruling. This standard was established in the context of handling Title VII discrimination claims. The latter test – widely acknowledged to be much more employer-friendly than the standard set forth in California Labor Code – requires that once the employee proves unlawful retaliation, the employer can evade liability by simply showing the adverse action was taken for reasons that were non-retaliatory and legitimate. The employee still bears the burden of proving the reason the employer gave was merely a pretext for illegal retaliation.

The Lawson ruling is considered a victory for future plaintiff/employees. Continue Reading ›

California Non-Disclosure Agreement Violated Labor Law, Court Rules

February 10, 2022 | by Nassiri Law

Nondisclosure agreements, sometimes also referred to as confidentiality clauses, are written legal contracts between employers and employees, drafted with the purpose of laying out binding terms and conditions. These can include provisions like prohibitions on disclosing confidential and proprietary information. However, as our Los Angeles employment attorneys can explain, they are too often used in ways that many believe exploit the power imbalance between workers and employers. In some cases, employees have been compelled to sign away their right to pursue claims for wrongdoings like sexual harassment in the workplace. They may also include non-disparagement clauses that prohibit workers from speaking negatively about the company. Where NDAs are found to be overly-broad in scope, they may be deemed unenforceable.

Recently, a California judge ruled that the confidentiality agreements required of Google’s employees were too broad – in violation of the state’s labor laws. The ultimate impact of that decision is more workers and ex-workers may find it easier to speak openly about these firms.

The Washington Post reports the case in question involved a Google employee who took the company to court, arguing the nondisclosure agreement the company asked him to sign blocked him from talking about his job to other potential employers. Effectively, he argued, this amounted to a non-compete clause. Such provisions are unlawful in California. A Superior Court judge sided with the employee on this point, though declined to make a decision on allegations these NDAs also prohibited whistleblowing and worker exchange of wage information – also illegal in California. Continue Reading ›