Los Angeles Employment Attorney Blog

Los Angeles is faced with almost impossible budget deficits and cuts. City leaders are scrambling to meet the challenge. Unions and the Mayor are looking for ways to fairly and prudently handle a 530 million dollar budget deficit. Los Angeles City Mayor Antonio Villaraigosa is doing a commendable job in an unenvious position of trying to manage an enormous budget of over 7 billion dollars, but one that falls far short of the city's needs. Desperately looking for ways to do the right thing and avoid laying off thousands of Los Angeles employees, the Mayor is considering early retirement incentive offers to those nearing retirement.

The plan is appealing and might be welcomed by those who would qualify.  After a person has devoted 30 or 40 years to public service, early retirement with a financial incentive probably is appealing. And, the Mayor should be congratulated on tackling this problem. However, according to the April 22, 2009, issue of the Los Angeles Times, Mayor Antonio Villagraigosa was quoted as referring to those nearing retirement as "deadwood."

Mayor, you need some new speech writers. Deadwood is, to say the least, a politically incorrect reference to older workers. If people approaching the commonly thought age of 65 as retirement age are deadwood, then 6 of the 9 justices of the United States Supreme Court would qualify as "deadwood." Under that same view that those approaching retirement age are "deadwood", the Chief Justice of the California Supreme Court would qualify as "deadwood". Agree or disagree with these justices, they are not deadwood by any stretch of the imagination.  Rather, they are all stellar examples of people over the age of 60 who are productive, intelligent, and hard working professionals.  Andy Rooney, Mike Wallace, and Clint Eastwood are other great examples of hard working, productive people well over the "retirement" age.

It would be better to refer to those employees nearing "retirement age" as the mature part of the workforce who have enjoyed full and productive careers, not deadwood. More appropriately, these workers should be considered beautiful aged oak trees who have stood the test of time. Our Los Angeles mature public servants deserve our respect.  There is dignity in age. Anyways, Mayor, wasn't Deadwood an HBO western series?

Age discrimination is often subtle.  But whether it is subtle or obvious, it should be opposed. If you believe you have been discriminated against because of your age, you have rights and remedies under federal and state law.Consult with a mature Los Angeles employment law attorney or contact the California Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC).

Californians are reeling in an economic crisis. Teachers are being laid off, important services being reduced or cut, unemployment is historically high, and the state is near bankrupt. State and governmental employees are being asked to work less, take time off with pay, and make other accommodations because we don't have the money.

The average citizen in California is concerned about his or her paycheck, the stability of the state economy, and the future outlook. Even the legislature is trying to figure out creative ways to meet the challenge. The other day California State Speaker of the House, Karen Bass, a Democrat representing Los Angeles, and her Republican counterpart, the minority leader. Michael Villines, came up with a brilliant plan. Between the two of them, they gave out raises to 136 staff members for a total expenditure of $551,000.00.

Media, including the Los Angeles Times quickly jumped on the story. Ooops, busted. Political pressure exploded overnight; and, the legislators did a a turn-around. The raises were revoked, but it seems as though they were revoked for political expediency rather than because they wanted to correct a mistake.

Why do politicians think the taxpayers, the working people, should bear the burden, but they should be immune from the trouble and adversities everyone else is struggling with? Why does it take news and public outrage for politicians to do the right thing? Probably because most of the time, people don't notice and they can do what they want.Not this time. The news got out; and, ooops, California legislative leaders were busted and had to do a turn-around. A nice victory for the people of California. Really, legislators, we are all in this together. No excpetions. If we are going to raise anything, let's raise the bar of common sense. his would be a raise that we could all benefit from. 

If you have an employment law issue, contact the Abel Law Offices, Los Angeles employmnet law attorneys.  

 

In Montgomery, Alabama, the Southern Poverty Law Center built a memorial to those slain in the Civil Rights Movement. It is called the Wall of Tolerance. Finished in 2005, it is now of national and world significance as a memorial to those who fought to end social injustice. The Wall of Tolerance is also a present and powerful statement by over 100,000 people from around the world who have pledged to fight hate and injustice in their daily lives.

Tolerance is a key to defeating discrimination. Los Angeles should follow suit and pledge to fight hate and injustice. Southern California, with its tens of millions of people of all races and cultures, needs to join the movement to teach tolerance. It is through teaching tolerance, that workers will enjoy better work environments. Our businesses and workforces will be stronger as tolerance of the differences of others is taught and embraced.

Los Angeles is the proud home of the Museum of Tolerance, which is an institution dedicated to educating people about tolerance and eradicating prejudice. It is racial prejudice and animosity that stirs up so much trouble in the workplace. But such trouble is not limited to racial discrimination, intolerance is seen in discriminating against people with disabilities, people who hold different religious beliefs, and people who have immigrated to the United States for a better life.

Employers who really want a workplace free of discrimination should actively teach tolerance. Many employers are concerned about protecting themselves, but go about it the wrong way. The best way for employers to protect themselves against employment lawsuits is to treat its employees with respect and dignity. If employers would concentrate on that instead of rules to prohibit and punish, they would be on the road to developing excellent relationships with their employees. Based on my 26 years of litigating employment discrimination lawsuits in Los Angeles and the surrounding counties, this focus on dignity and respect for employees would do much to reduce the number of employment lawsuits and the threats of employment lawsuits.

For more information on the Southern Poverty Law Center, click here.

For advice or seminars on teaching tolerance, contact Los Angeles employment law attorneyes at the Abel Law Offices.

On April 17, 2000, the California Labor Commissioner, Angela Bradstreet, and the Attorney General, Edmund Brown, announced that they had joined forces and obtained a default jugment for $13,640,819,00 against two janitorial services (Excell Cleaning and Building Services Inc. and M.O. Restaurant Cleaning of California Inc.) operating in Los Angeles and two other southern California counties. The action was brought and won because the companies didn't pay payroll taxes and failed to pay minimum wage and overtime to approximately 300 janitors. Congratulations to the State of California Labor Commissioner Angela Bradstreet and Attorney General Edmund Brown! 

Penalties and liquidated damages were included in the $13,640,819.00 judgment. Before the lawsuit was begun, California conducted an investigation that uncovered that the janitors were required to work 8 hours a day, 7 days a week for $50.00 per day and were misclassified as independent contractors so the companies wouldn't have to pay payroll taxes. The default judgment was entered after both companies were served with the summons and complaint but failed to respond.

If you are working overtime and not getting paid, you can contact the California Division of Labor's Worker's Information Hotline at 1-866-924-9757 or consult with an experienced employment law attorney.

Congratulations janitors of Los Angeles. Great clean-up job!

For the full text of the California Labor Commissioner and State Attorney General press release, click here.

Recently, the California Supreme Court denied review of Brewer v. Premier Golf Properties (2008) 168 Cal. App. 4th 1243. Brewer sued her former employer for Government Code violations and Labor Code violations pertaining to meal and break times. The trial resulted in a verdict in her favor including $195,000.00 in punitive damages.

Premier Golf Properties filed an appeal. The appellate court ruled that because the violation of the statutory provisions for meal and break times arose out of the employment contract, tort damages (punitive damages) were not available. But, the real basis for meal and break times, is public policy. This public policy was enacted into law in the Labor Code. Employers must give employees meal and break times. It is the decent and right thing to do.

Likewise, it is the decent and right thing not to discriminate against employees because of the employees race, religion, age, gender, sexual preference, medical condition, or physical disability unless it is a genuine, bona fide criteria that excludes someone. What is important, is that like legislatively mandated meal and break times. California has legislated public policy by mandating employers provide a discrimination free workplace. If the employer violates the public policy mandates embodied in the Fair Employment and Housing Act (FEHA), the employer may be held liable for punitive damages. The same should be true for violations of California Labor Code dealing with meal and break time violations. Such a change will not harm employers that comply with the law.

Punitive damages act as a deterrent to wrongful, unlawful conduct. It just isn't worth it for an employer to violate the law because of the risk of punitive damages being imposed for violation of the law. The prohibition against employment discrimination is based on public policy and codified in the Government Code Section 12940 et seq.. The requirement for meal and break time is based on the public policy codified in the Labor Code. Real life needs to hold people and employers responsible for their actions. When those actions are fraudulent, coercive or in conscious disreagrd of an employee's rights and welfare, punivitve damages are appropriate. 

The California legislature should amend the Labor Code to allow punitive damages for violations pertaining to meal and break times. Most employees live from paycheck to paycheck. They need protection from employers. And, in order to make sure that employees get their meal and break times, employers should face punitive damages if their failure to comply with the law constitutes fraud, coercion, or is in conscious disregard of their employees' rights. While employers may have sighed a sigh of relief when Brewer was decided, it was on the backs of every day workers. It is time to take another swing for punitive damages.

In the meantime employees, insist on your meal and break times. If you are retaliated against, harassed or wrongfully terminated because of asserting your right to meal and break times, in this writer's opinion, that would be a tort for which punitive damages are available. Los Angeles employment law attorneys who represent plaintiffs are among the most courageous and zealous advocates practicing law today. If your rights are being violated consult with an experienced employment law attorney or contact the Local California Labor Board office. 

Discrimination, hate, and injustice are rooted in intolerance and ignorance.  California and the United States Government have enacted laws to prohibit discrimination, to make it public policy to be fair to people regardless of the person's race, national origin, gender, age, sexual preference or religion. And, these law are good; but, they are not enough. We need to educate our children and communities about tolerance. Tolerance is a fair and permissive attitude toward others who are different - different race, different culture, different beliefs.

Discrimination in the workplace is a manifestation of intolerance and ignorance. Teaching tolerance is a key to defeating discrimination. Sometimes, tolerance is taught by remembering the intolerance and injustice of the past. On Sunday April 26, 2009 at 1:45 p.m. at the Los Angeles Holocaust Monument in the Pan Pacific Park, there will be a commemoration of the World War II Holocaust as part of the World-Wide Holocaust Remembrance Day.

The theme is to teach children and all humanity to never forget the injustices of intolerance. It is a look back in history when hatred, intolerance, and injustice perpetrated unimaginable horrors on the Jewish people. The lesson is that unbridled hatred is destructive, even evil. While this annual commemoration of the Holocaust has become a sacred time of remembrance, it is also an opportunity for all to learn from the past.

Los Angeles is privileged to be the home of the Museum of Tolerance. A unique museum that provides an interactive experience fallowing the visitor to become an eye witness to the pain, misery, and destructiveness caused by intolerance. Its goal is to teach tolerance and understanding. It is an experience that helps open peoples' minds and shake entrenched beliefs. This process is a process of hope for humanity. Teaching tolerance opens the doors of hope that different people can live together peaceably and respect their differences. Diversity should be embraced as a principle that makes Americans stronger as a people.

Employers would be well served by teaching tolerance to its employees, supervisors, and managers. Corporate employment law attorneys and Human Resource Departments should implement comprehensive educational programs to teach tolerance in the workplace. Teaching tolerance is a key to defeating discrimination in our nation, our communities, and our workplaces.

When an employee is discriminated against, retaliated against for having engaged in protected activity such as reporting unlawful workplace discrimination or is wrongfully terminated, they want justice. They want to be vindicated. They are mad and they are hurt.  And, you can't blame them. Who wouldn't be?

"I'll take this to the Supreme Court" is a frequent refrain. Employment lawyers in Los Angeles, as do employment lawyers in most jurisdictions, have the option to file in a nearby state or federal court.  There are many similarities between federal and state anti-discrimination and anti-retaliation laws. But there are differences in the law and also differences in the federal and state litigation procedures, juries, and appeal outcomes.

Two Cornell University School of Law professors, Kevin M. Clermont and Stewart J. Schwab, wrote and published an interesting article about the employment cases in the federal court compared to those in state court. The law review article Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse contrasts the trial and appellate outcomes in employment cases in state and federal cases. Moral of the story - don't make a federal case out of your employment case.  Statistically, plaintiffs have much better outcomes at both the trial and appellate level in state court than they do in federal court.

When thinking about pursuing an employment discrimination, retaliation or wrongful termination case, consult with an experienced employment law attorney. 

Employment litigation is an active field of law in Los Angeles, California. Los Angeles employment law attorneys are frequently called upon to determine when to file a case and whether or not the the statute of limitations has expired which means that time within which to bring a case has passed. These questions often come up because the employee, before hiring an employment law lawyer, filed an internal grievance with his or her employer.

Under the California Government Code Section 12960 subdivision d, which is a part of the California Fair Employment and Housing Act (FEHA), a charge of discrimination must be filed within one year of when the discrimination occurred. There are doctrines that extend the time; however, the California Supreme Court recently ruled that the FEHA statute of limitations could be equitably tolled during the time an employee's internal grievance was pending.

This is good news for Los Angeles employees and employees through out the State of California. Employees try, as they often instructed at work, to resolve a problem at the lowest level. And, many people don't really want to sue their employer. So, starting with an internal grievance is a reasonable step. This has approach has been approved and now has the seal of approval by the California Supreme Court in its decision McDONALD v. ANTELOPE VALLEY COMMUNITY COLLEGE DISTRICT (2008) 45 Cal. 4th 88. What does this mean for Los Angeles employees and Los Angeles employment law attorneys? First of all it means, that the California Supreme Court analyzes the law and the facts of employment cases, and fashions results that consistent with sound legal principles and take into consideration practical realities. Secondly, it means employees are not deprived their day in court because the employer took time to resolve an internal grievance. Third, It's okay to file an internal grievance. Employees, you never know, maybe your employer will actually listen and remedy the situation. However, if the employer doesn't, you will still have time to get your day in court.

Los Angeles is the second largest city by population in the United States. And, it is a diverse culture with races and people from around the world. While one might think that in the 21st Century there would be less racial discrimination in a large metropolitan area like Los Angeles, it isn't so. Racial discrimination is just more subtle now. Employers turn a blind eye and prejudiced people are just more clever about how they pull-off discrimination.

In a city that has a large percentage of Hispanics, Hispanics do not occupy a pro-rata share of professional and administrative jobs. African-Americans still have to fight for training opportunities, promotions, and to be treated fairly. Other minorities face a similar plight. Employers should implement anti-discrimination strategies and policies to educate all its employees about the value of diversity in the workplace and the illegality of discrimination in the workplace. It is not enough to have policies. Policies must be vigorously and diligently enforced.

Los Angeles employees should fight racial discrimination it by reporting racial discrimination to supervisors, Human Resources Departments or even the CEO. Don't take it. Fight it. If you don't get prompt relief, file a charge of discrimination with the Los Angeles District offfice of the U.S. (EEOC) or the Los Angeles District Office of the California Department of Fair Employment and Housing (DFEH). Another option is to retain seasoned employment law legal counsel to discuss your rights and remedies.

Employees and employers should fight racial discrimination in the workplace.  It is divisive, counter-productive, and wreaks havoc on people's lives. Fight racial discrimination.

If there is no specified term of employment, then under California Labor Code Section 2922, employment may be terminated at the will of either party with notice to the other. This is known as the employee At-Will doctrine. Many employers in Los Angeles have employee handbooks that specify that employees are At-Will.

Many employment applications include language that employment, if offered will be "At-Will." And, when an employee starts employment, he or she may be asked to sign documentation memorializing that the employee is an at-will employee.

Labor Code Section 2922 is only a presumption. It can be rebutted. That's right employees, what may have started out as At-Will employment may by have changed. Agreements can be made not to fire an employee except for Good Cause. These agreement can be express, i.e. written or they may be an oral agreement or promise for permanent employment.

It is also possible to rebut the presumption of At-Will employment, by an Implied-In-Fact Contract not to terminate except for good cause. This is established by demonstrating by the totality of the employer-employee relationship that there was an Implied-In-Fact contract not to terminate except for good cause.

There are more ways to rebut the presumption of At-Will employment which will be addressed in other posts. But, for Los Angeles employers who think their employees are At-Will and it is easy to say goodbye, they should be concerned about employees thinking "Not So Fast, buddy."

 

Almost 50 years ago, President John F. Kennedy signed groundbreaking legislation known as the Equal Pay Act (EPA) into law. The EPA prohibits unequal pay to women and men who do the same job. But, today, women still get paid less than men for doing the same job, National Women's Law Center. Now there is new legislation pending which passed the U.S. House of Representatives on January 9, 2009 known as H.R. 12: Paycheck Fairness Act and is going on to the Senate.

HR 12: Paycheck Fairness Act would put teeth into the EPA. It would add compensatory and punitive damages and allow class action lawsuits, which is, apparently, why the U.S. Chamber of Commerce has fought against the bill. (The U.S. Chamber of Commerce is the largest business federation in the world which represents more than 3 million businesses). The concern is frivolous lawsuits.

That is total hogwash, baloney, scare tactics. No employer needs to worry about punitive damages if the employer complies with the law. Generally, for punitive damages, the plaintiff has to show that an employer acted in conscious disregard of the plaintiff's rights,  with coercion or fraud. Punitive damages and class action lawsuits should help keep employers in-line and encourage them to pay equal pay to women and men. People who are treated fairly aren't after their employer to sue. From my 26 years of employment law practice in Los Angeles, California, it is the abused employee, the employee who has been or is being unlawfully treated, not the happy, well treated employee that wants to sue.

Shame on you U.S. Chamber of Commerce. Compensatory damages, punitive damages, and class actions are just what we need to get equal pay for equal work.  The law hasn't worked without it. Women workers are vital and dynamic contributors to the U.S. workforce. If they aren't paid fairly, they should have the right to powerful legal redress. I vote for the Paycheck Fairness Act. Got carried away there for a moment, my vote doesn't count. I forgot. It isn't necessarily about fairness, it is about politics.

The Abel Law Office Offices, Los Angeles employment law attorneys, counsel employees and employers on equal pay for women and gender discrimination.

We often think of helping people get better wages or work conditions and admire those who speak up to make working people's lives better.  Frederick Douglass was one of the first great worker's activists. Mr. Douglass escaped the cruel bonds of slavery and then spent his life working and speaking out for those who were still enslaved and for all people deprived of their civil liberties. Mr. Douglass said:

"To those who have suffered in slavery I can say I, too, have suffered. And he also said "To those who have battled for liberty, brotherhood and citizenship I can say I, too have battled."

Frederick Douglass was born Frederick Bailey, a slave in the United States of America. It was a time when it was legal for one American to own another human being. But this was not a state that young Frederick liked. When he was 18, he made his first attempt to escape that terrible condition, but was caught and imprisoned. A year later, in 1837, he escaped fro slavery. He changed his name from Bailey to Douglass to evade slave catchers.

Mr. Douglass fought for the freedom of others in slavery. He started a newspaper, he supported women's rights, and in 1850 he became involved in the Underground Railroad. The Underground Railroad was a name given to the movement of those who helped slaves to freedom.  Even today, Mr. Douglass is considered the ultimate workers' rights activist.

He, because of his intelligence, skill as an orator, and his work as a champion for civil rights, went from slavery to working in the Council of Government for the District of Columbia became the Marshal for the District of Columbia.  He also held diplomatic positions in the Dominican Republic and Haiti. Frederick Douglass - a man who escaped slavery and changed history.  His life story is still inspiring. A life of courage and accomplishment for the rights of others.

In celebration of the 4th of July in 1852 Frederick Douglass was asked to give a speech.  It was poignant and courageous; and, this speech has been re-enacted and read by many. To watch and listen to James Earl Jones read Mr. Douglass' famous 1852 speech, go to Youtube and search Frederick Douglass.

Los Angeles has named schools after him. He is honored by the National Parks and his papers are in the Library of Congress. Movies have been made about Mr. Douglass and his ground-breaking work for the down-trodden. Most importantly, though, his name and personage shine as inspiration for civil liberties and for the rights of those who are suppressed. Frederick Douglass ran to freedom and still leads the fight.

For more informatin on Frederick Douglass, click on the following links:

http://www.americaslibrary.gov/cgi-bin/page.cgi/aa/douglass

http://lcweb2.loc.gov/ammem/doughtml/doughome.html

April 1, 2009 the United States Supreme Court decided 14 Penn Plaza LLC et al v. Pyett et al which involved the enforceability of an arbitration clause in a contract that the Service Employees International Union, Local 32 BJ (Union) had entered into. The Union, under the federal statute 29 United States Code Section 159 ( 29 U.S.C Section 159 a) is the exclusive bargaining representative for employers in the building-services industry in New York City. It negotiates and enters into agreements with the Realty Advisory Board (RAB) on Labor Relations for New York City.  And, the agreement that had been reached between the Union and RAB was memorialized in the Contractors and Building Owners (CBA) agreement.

The agreement provided that a union member who claimed any employment discrimination had to submit to binding arbitration.  That same agreement permitted the employer to use its discretion to reassign members from one type of work to another. Initially, the Union filed an arbitration claim alleging Age Discrimination under the federal Age Discrimination Act (ADEA) embodied in 29 U.S.C. Section 621. That claim was withdrawn by the Union because of the agreement with CBA that its employers had the right to reassign workers.

The impacted employees then obtained Right-To-Sue letters from the U.S. Equal Employment Opportunity Commission (EEOC) and filed a lawsuit alleging that they were discriminated against because of their age. The federal District Court and Court of Appeals denied the employers' petition to arbitrate based on a previously decided U.S. Supreme Court decision Alexander v. Gardner-Denver Co. 415 U.S. 36 which prohibited enforcement of arbitration of Age claims even if the collective bargaining agreement required arbitration.

Step in U.S. Supreme Court. These decisions were reversed. The Court noted that arbitration agreements allow the parties to avoid litigation costs. The Court then held "... that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law." Moral of the story - if you agree to arbitrate, that is what you will be doing. Beware Los Angeles Unions, if you want to preserve your members' rights to pursuing claims of discrimination in a court of law with the right to a jury and the right of appeal, don't agree to arbitrate.

Retaliation in the workplace is against the law. Because Los Angeles is a melting pot of races and cultures, there are clashes in the workplace. Some employees simply can't take it anymore and report unlawful discrimination. Employees who engage in such protected activity are often the targets of retaliation in the workplace the report; and, it ain't right. In fact, it's illegal.

California's Government Code Sections 12900-12996, commonly known as the Fair Employment and Housing Act (FEHA), and, in particular, Government Code Section 12940 (h), prohibits an employer from retaliating against an employee who objects to unlawful discrimination in the workplace. In practice, that means if an employee engages in protected activity such as complaining about discrimination or sexual harassment, it is unlawful for the employer to take adverse employment action against the employee.

It is sad, but employees who engage in protected activity are often labeled as a "problem employee", subjected to unique discipline, given the lousy assignments, if any at all, and basically have stuck a spoke in the wheel of their career progress. Employees who are the victims of this kind of retaliation suffer deeply. The emotional toll cannot be contained in the workplace and spills over into the home and social life.



If you engaged in protected activity protected by FEHA, the suffered adverse employment actions, and there is a link between your engaging int he protected activity and the adverse employment actions, you have what is referred to as a "prima facie" case of retaliation. Employees have rights under the law. Contact the Department of Fair Employment and Housing or an experienced employment attorney for help. If it ain't right, do something about it!