Employment Litigation

Employment law is a well-established body of statutes and case law that address the rights and obligations within the employer-employee relationship, including current employees, job applicants and former employees. It covers a wide range of legal issues, that include wage and hours laws, employment discrimination and wrongful termination matters, and workplace safety. Many employment law issues are governed by applicable federal and state employment law, but a number of issues are determined according to basic contract law.

As a full service litigation law firm, Tiedt & Hurd has represented both businesses and individuals in lawsuits filed by those alleging employment practices violations.

Background on Employment Law:

Historically, employer-employee relationships, in the United States in general and California specifically, have been governed by the rule of “at-will” employment. This means that an employee hired for an “indefinite term” could terminate his own employment, or have his own employment terminated by his employer, “for no reason at all.” The “at-will” doctrine is still the rule in California [see Labor Code § 2922].

However, over the years, the legislature and the courts have created numerous exceptions to this rule. For example, on the federal level, Congress enacted the National Labor Relations Act (“NLRA”) and the Fair Labor Standards Act (“FLSA”), while in California there are numerous provisions within the Labor Code that limit an employer’s ability to fire an employee for exercising certain rights. Thus, numerous state and federal laws now exist to limit an employer’s ability to terminate employees “at will”, or to otherwise affect their terms and condition of employment based on age, race, religion, sex or physical disability. In addition, in order to promote fairness and professionalism in the workplace, state and federal laws have been enacted that prohibit discrimination or other activity that has been deemed unacceptable in the workplace. For example, Congress passed the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”) and Title VII, while in California, we have such legislation as the Fair Employment and Housing Act (“FEHA”).

Employment Discrimination:

In California, generally, any private employer who has at least 5 employees [California Government Code § 12926] is prevented from discriminating against employees based on race, religious affiliation, national origin, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (at least 40), or pregnancy. [California Government Code §§ 12940, 12941, 12945] These individual “characteristics” are said to be “protected classes.” This protection of employees extends not only to those who have such “characteristics” but also those perceived to be within those protected classes. [California Government Code § 12926(m)]

Discrimination generally occurs when an employee is intentionally treated differently because of race, color, religion, national origin, disability, gender, age, and in some states, sexual orientation. Employment discrimination claims may be prosecuted under various state and federal statutes. However, even if the employee’s evidence is sufficient to show discrimination, an employer may be able to justify a particular job action (i.e. termination, demotion or other “adverse employment decision”) by establishing that such treatment arose out of business necessity, or that a legitimate (“bona fide”) job qualification required consideration of factors that may have had a discriminatory effect unrelated to the person’s status as a member of a “protected class.” When the employer makes such a legitimate justification, the employee must then show that discrimination, not the employer’s justification, was the true reason for the action.

It is also unlawful for an employer to discriminate in employment based on the employee’s age. This includes refusing to hire an individual or firing an employee on that basis. It also includes treating any particular employee differently in terms of that employee’s compensation, the terms, conditions, and privileges of his or her employment, and all employee benefits.

Harassment Claims:

Harassment claims are probably the best known types of employment cases. These claims usually involve claims that an employee was subject to some form of abuse based on being a member of a “protected class.” It is quite common for en employee to assert claims that she (or he) was subject to “sexual harassment” by another employee or a supervisor.

Sexual harassment is any unwanted and unwelcome sexual behavior by one employee or supervisor toward another employee. It involves a broad range of conduct, including verbal harassment (such as derogatory comments, explicit sexual comments and descriptions of sexual exploits), or requesting sexual favors, usually in return for some benefit, or some risk for refusing to provide such favors (the so-called “quid pro quo” harassment). The term also describes physical harassment, ranging from inappropriate touching to outright sexual assault. In order to be classified as illegal, the conduct in question must be both unwelcome and offensive to the victim.

The individual harasser may be personally liable under the Fair Employment and Housing Act (“FEHA”). Further, the harasser’s employer may also be liable if the harassment is done by a supervisor, or if the harassment is done by a “fellow employee” the employer may be liable if it knew of the harassment (or reasonably should have known of it) and did nothing to prevent it by taking “preventive action.”

Wrongful Termination:

"Wrongful Termination" is a term used to describe an employee’s termination that violates either (a) an employment contract, (b) some state or federal law, or (c) some fundamental “public policy”, as defined by state or federal statute, regulation or constitutional provision. What this means is that, since California still adheres to the doctrine of “at-will” employment, an employee can only be said to be “wrongfully” terminated if that firing came as result of conduct that violates a statute, regulation or constitutional provision. Examples of Wrongful Termination include situations where:
• An employee is fired for refusing further an employer’s illegal conduct;
• An employee is fired for satisfying a legal obligation (for example, being called to jury duty);
• An employee is terminated for exercising a legal right (for example, being fired for making a claim for leave based on the Family Medical Leave Act or its California counter-part, the California Family Rights Act); or
• An employee is discharged in retaliation for making complaints about conduct by the employer that he or she believes to be unlawful, e.g., failure to pay overtime, or failure to comply with safety regulations. (These types of complaints often make the news as “whistleblower” claims that involve employer retaliation against an employee who reports the improper or unlawful conduct of another employee or of management itself to government authorities. It is illegal for an employer to retaliate against a “whistleblower.”

Disability Discrimination:

Both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 protect individuals with disabilities from employment discrimination. An individual with a disability is defined as someone who has a physical or mental impairment that substantially limits a major life activity, has a record of having such a physical or mental impairment, or is perceived as having such impairment. The term is broadly defined to include any physiological, mental or psychologically-based impairment, but it does not include mere physical characteristics or cultural, environmental, or economic impairment. The impairment must cause a substantial limitation to a major life activity.

Overtime Pay:

Under both State and Federal law employers are required to pay additional compensation to eligible employees who work more than forty hours during any seven-day period. For every hour over forty hours in any given workweek the employer must pay the eligible employee at least one and one-half times the employee's ordinary hourly rate. Often the key to such disputes is determining who is eligible and who may be “exempt.”

Under certain circumstances, certain types of “executive” or “administrative” may not be entitled to overtime and are therefore “exempt.” However, for an employer, this usually means more than simply calling an employee a “manager” or simply saying that a particular employee serves in an “executive” or “administrative” capacity. Certain procedural requirements must be met for an employer to prevail on such an overtime issue. Further, case authority tells us that the burden is usually on the employer to show that these criteria are met.

Attorneys’ Fees Issues:

Many of the statutes related to discrimination, harassment or overtime pay also include attorneys’ fees provisions which make the exposure of long-term litigation very expensive. Thus, in the event of a potentially valid claim, early resolution of such matters may be in the interests of both parties.

Employment Policy Manuals & Employee Handbooks:

Many employment issues arise because there simply is no established company policy on a particular issue or the existing policy is either not properly publicized to the employees or is poorly understood. A qualified employment law attorney can help draft and put together a company policy manual that comprehensively sets forth those policies, and makes them understandable.

Many problems can be averted by properly developing a comprehensive “employee handbook” that leaves no doubt as to what the Company expects from each employee, and what each employee can expect from the company. We offer preventive advice in preventing discrimination and harassment claims, and provide advice and assistance on the preparation of employment manuals.

Severance Agreements:

Many times an employer-employee relationship must simply “come to an end” based on the changed needs or desires of the respective parties. In such cases, to avoid future litigation, it may be best to end that relationship with a severance agreement.

A severance agreement is a form of settlement agreement where aggrieved employee agrees to accept an agreed sum of money in exchange for, among other things, abandoning all claims (or potential claims) against the employer. If the parties can negotiate proper terms, a severance agreement often saves time, money and aggravation for both sides. Severance agreements commonly include such provisions as "mutual non-disclosure of terms," an agreement that the employee will not compete against the employer, and that neither the employer nor the employee will make negative comments about the other. This benefits both sides, since an employee can truthfully explain to another future employer that he or she left voluntarily, while at the same time, an employer does not have to worry (as much) about a dissatisfied employee “bad-mouthing” his or her former employer.

Your Local Employment Lawyers:

With our experience in these areas, Tiedt & Hurd offers assistance to employees who have been subjected to unlawful employment practices. We also offer a local alternative for small to mid-size businesses, to preventative services before litigation arises.

Our approach to successful litigation is prevention first. That is why we recommend that our business clients allow us to thoroughly evaluate their hiring practices, review employment agreements and advise them on their employee classifications on quarterly basis. Remember, one small mistake by the HR department could have devastating results for the entire company.

If you face legal problems related to an employment issue, contact the professionals at Tiedt & Hurd.