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Talking About What Matters to Employees
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What Are My Rights in a Layoff?

Layoffs are inevitable.  Companies fail.  Business needs change.  Twitter recently announced that 9 percent of its employees are being laid off.  IBM is continuously laying off employees while hiring new employees to replace them.  The University of California – San Francisco is outsourcing many of its information technology jobs to India.  The list goes on. However, that doesn’t mean an employer can simply lay off whomever it chooses.  Put simply, a company can’t target employees in protected classifications and it can’t disproportionately select protected employees without a legitimate business reason. Who’s protected? Under California law, employees are protected from discrimination and harassment because of: Race Color Religion Sex Gender Gender identity Gender expression Sexual orientation Marital status National origin Ancestry Mental and physical disability Medical condition Age (over 40) Pregnancy Denial of medical and family care leave Pregnancy disability leave In addition, an employer can’t retaliate against an employee for protesting illegal discrimination relating to one of the above categories.  Likewise, an employer can’t retaliate against a whistleblower (for example, an employee who discloses a company’s legal violation to a supervisor or the government). What kinds of discrimination are prohibited? There are two kinds of unlawful employment discrimination: (1) disparate treatment and (2) disparate impact.  Disparate treatment refers to intentional discrimination.  These claims are proved by direct and circumstantial evidence.  Direct evidence may consist of discriminatory comments – for example, “you’re too old and need to retire.”  In contrast, circumstantial evidence raises an inference of discrimination – for example, if the reason given for your layoff is false, it can be inferred that your employer may have had a discriminatory motive.  In a layoff, this may occur where an employer says your job is going away, but then hires a younger replacement. Disparate impact refers to a policy or practice having a disproportionate, negative impact on employees in one of the above categories.  In a layoff, this usually occurs when an employer selects employees for layoff based on business needs, but ends up selecting too many employees in one or more protected classifications – for example, too many employees over the age of 40.  These claims are proven through statistical evidence.  Unless the employer can show that it had a legitimate business reason for laying off too many protected employees, such discrimination is unlawful. Employees subject to discrimination may recover economic damages (for past and future lost wages and benefits), non-economic damages (for emotional distress), punitive damages (in disparate treatment cases only), and attorneys’ fees and costs. Evaluating your...

LVBH Wins Multi-Million Verdict for Whistleblower Firefighter

For the second time in less than six months, Levy Vinick Burrell Hyams LLP won a multi-million dollar verdict for an employee seeking vindication of rights in an employment matter. On March 18, 2016, a Solano County jury brought in a $2,357,000 verdict for Plaintiff Todd Milan, an apprentice firefighter, against the City of Vallejo.  The jury found that the Vallejo Fire Department retaliated against Mr. Milan for complaining to OSHA about regulation violations that occurred at a fire, and that the fire department failed to accommodate the post-traumatic stress disorder he developed at the fire. In September 2011, Mr. Milan was in the 27th month of a 36-month apprenticeship program when his crew was called to a fire at a mobile home park.  A man who as a parapalegic was trapped inside the burning structure.  Mr. Milan was ordered into the structure and expected his captain to be right behind him with the hose.  Instead Mr. Milan was left alone to attempt to rescue the man, which he was unable to do as the fire grew so hot that it threatened his life as well.  Unfortunately, Mr. Milan had to leave the structure without the resident to save his own life. Following the fire, Mr. Milan was disciplined for allegedly breaking the buddy system by going in alone.  Mr. Milan found out later that his battalion chief denied ordering him in and his captain didn’t have his gloves, which explained why he was not in the building putting water on the fire. When OSHA came to investigate the fire and the injuries Mr. Milan suffered trying to accomplish the rescue, he told the investigator what happened at the fire.  Shortly after talking to OSHA, Mr. Milan was subject to a series of disciplinary actions which were in retaliation for his speaking out. Although the Department was fully aware that Mr. Milan had developed PTSD as a result of the fire, no one entered into an interactive process with him to determine if any accommodation was needed.  While he was able to perform without a problem in fire situations as well as emergency medical calls, his PTSD anxiety manifested in the remaining tests he was required to take as an apprentice.  He requested additional training for the tests, a request that was haphazardly filled.  As a result, he failed his 30th test and was subsequently fired with no interactive process or accommodation.  Hence, the trial. Partners Leslie Levy and Sharon Vinick prosecuted the case through nine weeks of trial...

What’s in Your Personnel File? – Part 2

In California, employees have a legal right to review and copy their personnel files.  Part 1 of this article explained the reasons why employees should consider finding out what’s in their personnel files.  Part 2 provides the nitty-gritty details about the California law that protects an employee’s right to review their own personnel file. California Labor Code Section 1198.5 provides that, whether you are a current or former employee, you or your representative has the right to inspect and copy any records your employer maintains regarding your performance. How do you do it?  Request the records in writing.  We suggest directing the request to your company’s human resources department and following-up via email.  Employers have  30 days to provide you access to the file. If you are currently employed, your employer must make the records available for inspection and, at your request, provide a copy of the records at your workplace, although you and the employer may agree on another location.  Your employer does not have to permit you to review the records during your work hours, so you may have to take time off or come in during your off hours to inspect your file.  If the employer requests that you review the records at a place other than where you usually work, however, you can’t lose pay because you have to travel to review the records. If you are a former employee, the employer must make the records available at the location where the employer stores the records, unless you and the employer agree to a different location.  A former employee may request to receive a copy by mail but must pay for the actual cost of postage.  If the employer says you were terminated because of harassment or workplace violence, the employer can provide the records by mail or choose somewhere other than the workplace to may make the records available.  But the location has to be within reasonable driving distance of your residence. There are limitations on personnel file requests.  The employer is only required to comply with one request per year by a former employee.  The employer is not required to allow inspection or provide copies of records regarding investigation of a criminal offense, letters of reference, or records that were obtained prior to your employment.  If you are covered by a union contract that includes a procedure for the inspection and copying of personnel records, you must comply with that procedure.  You may be charged for copying the file, but the charge cannot...

What’s in Your Personnel File? – Part 1

A personnel file can serve as the road map to a person’s employment.  It often contains the initial employment application, performance evaluations over the years, commendations the employee has received, as well as disciplinary records or other written documentation critical of the employee’s performance.  Supervisors and managers often read through personnel files when it comes time to make critical decisions about an employee’s career.  Raises, bonuses, even continued employment often ride on what can be found inside the file.  Yet most employees have never even seen the full contents of the important file bearing their name. If you are an employee (and most of us are), here are some prime examples of times when you might do well to review your personnel file – When you are headed into an interview about a potential promotion.  The manager who is going to interview you is certainly going to have a look at your personnel file.  Make an appointment with HR to have a look at it yourself to make sure the information in the file accurately reflects your work history and performance. When you have filed a worker’s compensation claim, requested medical leave or asked for reasonable workplace accommodations for a disability.  In each of these instances, you may have provided medical information in support of your request.  Reviewing your personnel file will help you make sure that your employer is not keeping your private medical information in the same file with the rest of your personnel records.  (A number of laws require medical records to be kept in a separate file.) When your boss seems to have it out for you.  It is rare, but we’ve come across more than a few cases where there is evidence that managers have papered personnel files with fake disciplinary write-ups.  If a manager is treating you unfairly in the workplace, make sure she or he is not creating a secret record to use to terminate you. When you have been terminated.  Even after you have been terminated, you can review your file.  In fact, your employer must keep your personnel records for at least three years following your termination. In California, employees have a legal right to review and copy their personnel files.  Employees and employers have a stake in fair workplace practices.  Human resources professionals and managers should view employee requests to review their personnel files as a chance to fulfill the promise of their open door policies. Part 1 of this article explained the reasons why employees should consider finding...

Decipher Your Paystub

California has very stringent laws regarding when and how employees must be paid. To make sure the laws aren’t ignored, employers are required to provide lots of information on paystubs. But do you really understand all the information you are receiving?

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