Are you in the process of filing an employment claim in California? Read these 5 employment law tips, then call our attorneys to get started.
1. Do I Need an Employment Law Attorney?
Some of the clients that we talk to during the week are clients that have already started the process of bringing a claim here in California against their employer. Sometimes it’s for a client that’s filed a workers’ comp case, and they’re nervous because they feel like the employer’s putting pressure on them to resolve their case, or the insurance carrier just wants to close out their case and the employee is still injured. In those types of situations, as in most workers’ comp cases, it’s important for you to reach out to an attorney to help you with that process and ensure that somebody’s advocating for you. A lot of times, this is your one shot to become whole, with regards to that injury.
Outside of workers’ compensation, we also get calls for employees that have gone to the DFEH or the EOC – or another agency called the DLSE, depending on the type of claim – and those agencies are trying to put pressure on them to resolve their case. The employer is offering them money and the employee is saying, “Well, that doesn’t seem like enough.” A lot of times, it’s not enough. I look at the numbers being thrown around and ask, “Do you think that makes you whole?” The employee often says, “No. No way.”
The reality is California is set up so that employees can represent themselves, so you don’t actually necessarily need to hire an attorney to bring a claim to a governmental agency. You don’t even need to bring an attorney with you if you want to file a lawsuit in superior court or federal court. In my personal experience, doing this is extremely dangerous. You’re dealing in a venue or a forum that is completely unfamiliar to you. You’re going to be litigating against attorneys that are going to be aggressive and see you as being outnumbered and outmatched. They’re going to wait for you to blow deadlines, and they’re going to wait for you to provide inadequate responses, and then they will take that opportunity to try and get the case dismissed.
As to the question of whether you can file a lawsuit by yourself or file a claim with a state agency by yourself, I would encourage you to talk to an attorney to see if they can help you out with that process before doing any of that. They can help you figure out if going to a state agency is actually the best step for you. If you’ve already filed with a state agency and you’ve got questions, it’s important for you to talk to an attorney to figure out where you’re at in the process with the state agency, and whether or not your claim has more value or whether or not there’s more claims out there to be added to your ultimate claims to try and fully compensate you for the harm caused to you by the employer here in California.
2. Choosing the Best Attorney
Especially in California, you want an attorney familiar with an area of the law called the Fair Employment and Housing Act. You need to look for an attorney that really specializes in discrimination or employment law.
The next step I think is really important is to look for an attorney that has the resources. Whether you take on a large corporation or a smaller employer, employers don’t just roll over. They do have the resources to fight you, and they will fight you. I think it’s important that you find a firm that’s big enough and has the resources to go toe-to-toe with the employer and with the employer’s counsel that they hire.
Next, I think it’s important that you find attorneys that will be able to take your case to trial. At the end of the day, it’s always surprising to me how many people call themselves civil litigators or trial attorneys. Truth be told, they’ve actually never tried a case. It’s important for you to find an attorney that has routinely tried cases.
Lastly, I think it’s important for you to find somebody that you trust and that you trust will tell your story and has your best interests in mind. Sometimes your best interest is going all the way; sometimes your best interest is to go to trial. At other times, your best interest might be to find closure before you go to trial, and that might be pursuant to a settlement agreement, in which you have the peace of mind that you feel that you’re able to resolve the case and move forward. That peace of mind has value to you.
Really, those are the factors that I think are important for you in finding an attorney. Find an attorney that has all of those aspects or all of those attributes that you can attribute to them.
3. Filing a Claim After Quitting Your Job
There’s a smaller subset of employees that we get that quit their jobs, and they wonder what affect quitting their job in California has on any claims they may or may not have. For employees that feel like they’ve been subjected to wage violations, what affect does quitting your job have on your claim? Not much. Any rights that you had as an employee will survive either termination or quitting. If you have a wage claim of some kind – an underpayment of overtime, unpaid wages, meal rest breaks – whether you quit or get fired for any reason, you’re always going to be able to assert your claims.
If you’re an employee that quits and you’ve been subject to what you believe is unlawful conduct – discrimination, harassment, or retaliation – and you quit, that can be a harder question as to whether or not the courts are going to allow you to proceed in court. This has to do with what we in California call ‘constructive discharge.’ Without getting too legal about it, constructive discharge is the court or a jury will determine whether a person in your setting had no other choice but to quit, that a reasonable person in your situation had to quit or else face additional discrimination, harassment or retaliation.
Before anybody quits, I think it’s extremely important that you talk to an attorney. If you’re trying to make a decision as to whether or not you quit, please don’t make that decision based off of something you read on the internet. It’s very important that before you quit your job in California because of retaliation, discrimination, or harassment that you talk to somebody, whether that’s my firm or another one.
4. Settling a Claim Before Trial
At the firm, we can divide my clients up into two groups. The first group is ready to go to trial, ready to take time off and try the case. They are ready to tell their story to a jury. The other groups of clients want their story to be heard, but they don’t need for a jury to actually return a decision. What they want to do is make sure that their story is told to the employer, that the record is set straight, and that the employer is held accountable for what happened to them and the damage that was caused. For these clients, they’re happy with telling their story, resolving their case, and settling their case.
The reality is that even for those that are in the first group, they want to try their case, they want their story to be told, but they’re also okay with ultimately resolving the case because a lot of cases do so – not all cases, but a lot of cases do so. The reality is if you bring a lawsuit, a lot of these cases settle, so you don’t have to be committed to actually taking the case all the way to trial. I will say what’s important is for you to make sure that you find a firm that are actually litigators and can actually take the case to trial, so if push comes to shove, the case can be tried.
Of course, that decision as to whether or not we try the case would always be up to the client – is that what they want to do? It’s really important for the other side to know that the case can settle on terms that we are okay with or that the employee has hired a firm that will try the case. That ultimately will drive settlement up. The fear of litigation will ultimately drive the settlements up because the employer wants peace of mind.
5. Recovering Damages
We had a client for whom we’d already filed an action and we were having her go through a lot of questions as to what attorneys would refer to as damages. She asked a question: “Actually, I’ve never thought about it, but what damages am I entitled to as a result of bringing an employment claim in California?” We talked to her about how she’s entitled to the damages that determination had on her, and discussed with her that one of the big damages that we look at is emotional distress.
She had been working for this company for years. She had been working for the company for 17 years, and she had gotten injured and told her employer that she had an upcoming surgery. After 17 years, within four weeks, about two weeks before the surgery, they had written her up three times and then terminated her. We talked to her about the emotional stress of losing a job that she really, really enjoyed. She really enjoyed doing the work that she was doing. Also, in addition to having that loss of actually something that you enjoyed, we talked about the stress of not being able to pay rent on the apartment that she was at.
She talked about the fact that her son was going into junior high football, and that they would have a fundraiser where each family was expected to raise $250 per kid. She talked about the stress of going back to her family and trying to fund-raise that money because she had already gone to her family the month before to pay for rent. We talked about that embarrassment. She talked about waking up at two o’clock in the morning and feeling inadequate as a mom, and being a breadwinner for 17 years and that stress. We talked about the stress of going forward and what kind of stress she will have in looking for a job and the fact that she was on track to actually get a job about a week later, but would be making less, but she was just happy to have a job. That’s all she ever really wanted.
We talked about that stress of not having that kind of money to do small things and that impact. We talked about that emotional stress of losing a job. We also talked about the wages and that she would be entitled to back wages between the termination up through a jury trial, as well as economic damages going forward. She would be making about four dollars less an hour in her job that she’s about to take versus what she used to make. Four dollars an hour, roughly, is $8,000 a year and that’s going to play out for a good number of years as she tries to be compensated and to receive the same compensation that she used to receive.
Those are the two main factors involved: you have emotional stress, both back and front emotional stress, and you have benefits – wage loss, loss of medical benefits – both in the past and going forward. Depending on the employer, you also might be entitled to punitive damages, which is literally a number to punish the employer to say that their behavior was despicable and, as a result of that, they should be punished by having to pay money. Our system isn’t perfect. All we can ask of a jury is that they compensate you for the stress and anxiety of not having a job, and for feeling inadequate and angry. All we can do is ask for money to punish them, to get their attention that something went wrong.
Lastly, we’d also seek attorneys’ fees and costs. If it goes all the way to trial, we ask the court that you, as the injured party, shouldn’t have to pay for the attorneys’ fees and costs. Most of our cases do so. We do try cases, and in those cases that we try we do ask the court that the other side pay attorneys’ fees and costs. Most of our cases settle, and from that we would take our attorneys’ fees from a lump sum. That lump sum is to compensate you for your back wages and your front wages, and for your emotional stress, and for you to hopefully be made whole.
Are you or a loved one in the process of filing an employment claim in California and have questions about these 5 employment law tips? Contact the experienced California employment law attorneys at the Myers Law Group today for a free consultation and case evaluation.
We can help get your life back on track.
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