6 Frequently Asked Employment Questions

If you’re in the process of filing an employment claim in California, read these 6 frequently asked employment questions and give us a call.

1) How Do I Choose an Employment Law Attorney?

6 Frequently Asked Employment QuestionsYou should look for a lawyer at a practice where the entire practice is devoted, to some degree and to some aspect, to employment labor law. 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.

2) Can I File an Employment Claim After Quitting Your Job?

A lot of employees that we represent throughout the year are employees that have been fired. 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, 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.

3) Can I Settle an Employment Law Claim Before Trial?

At the firm, we can divide 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.

4) Can I Recover Damages in an Employment Law Claim?

There are 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.

5) What are the Statute of Limitations for an Employment Law Claim?

Some of the time frames to bring a lawsuit will depend on the type of claim that you’re going to bring. Some require that you do something within six months of termination. Some of the same statutes or very similar statutes will allow a time period greater than that – a year, and arguably up to three years.

As to whether or not you have six months, a year, or three years, depends on the type of claim that you’re bringing and on the type of employer you’re going to sue. Some of the factors involved include the size of the employer. How many employees does it have within a certain geographical area? Is that employer a public entity or a private entity? There’s a lot of questions in determining how long you have to bring an employment claim in California. It’s a very fact-intensive inquiry.

It’s important that, regardless of what type of claim you’re going to bring, you reach out to an attorney as soon as you can to make sure that no timelines are being blown. I also think it’s important for you to understand that the statute will change depending on various factors. The sooner that you can bring your claim, the more likely the evidence will be there. Your co-workers are still there, so we can talk to them. Documents are still around and haven’t been destroyed. Again, how long it takes to bring a claim will depend on the type of claim, but sooner is always better.

6) How are Social Security Disability Benefits Handled?

If you have a claim under California Workers’ Compensation and they are paying you benefits, for the most part, that’s going to be your benefit related to that injury.

If during your injury you realize that you’re not going to be able to go back to work and that you want to seek additional benefits for when your Workers’ Compensation claim is over, you are sometimes able to file a claim for Social Security Disability benefits both through the Federal government as well as here within California. Sometimes, in addition to Worker’s Compensation benefits, you also might be entitled to short-term disability payments, as well as long-term disability payments. There’s a lot of options and a lot of issues as to what benefits you’re entitled to and when you’re entitled to them.

It’s not the easiest area of the law for people to navigate on their own.


Are you or a loved one in the process of filing an employment claim in California and have questions? After reading these 6 frequently asked employment questions, 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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