Employment Law

I believe I was wrongfully terminated at work. What can I do?

In California, if you were wrongfully terminated, you can file a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the violation; otherwise, you may lose your right to pursue legal action. You will then receive a right-to-sue letter from the department and have one year from that date to file a complaint in state court.

I am being sexually harassed by an employee at work. But the employee is close friends with the manager. I fear that if I report the sexual harassment, I will be retaliated against by my employer. Is that legal?

This is a common concern. However, it is unlawful for an employer to retaliate against an employee for reporting sexual harassment to their human resources, management, or superior. Standing up for your right not to be discriminated against is considered protected activity under state and federal law. It is illegal for an employer to retaliate against a worker for doing so. This means that your employer would be breaking the law if they fired you, demoted you, lowered your wages, or passed you up for a promotion because you filed a sexual harassment complaint.

It is also helpful to be aware of the types of retaliation that can take place in the workplace. Retaliation does not just mean termination, but can also be any form of negative employment action. Examples include demotion, verbal abuse or harassment, moving a worker to a less desirable shift, poor performance reviews or other more subtle negative behavior or action.

I believe I am being discriminated at work because of my age. How can I tell if I am being discriminated?

There are a number of ways age discrimination can manifest in the workplace. One sign of age discrimination is when an older worker is repeatedly treated poorly or given an unappealing duty. In this case, the employer may be trying to replace older workers or get them to quit. A common sign is when supervisors make inappropriate comments regarding your age or harassing questions about when you are going to retire. All employees, regardless of age, have the right to be treated fairly in the workplace.
Under federal laws enforced by the U.S. Equal Employment Opportunity Commission, it is illegal for an employer to make an employment decision based on an employee’s age. This includes basing assignments or promotions on assumptions or stereotypes about an employee’s age. If the employer requires employees to take a test before being given an assignment, the test may not exclude employees aged 40 or older, and the test must be based on a reasonable factor unrelated to age.

My employer requires me to work either more than 8 hours a day, 7 days in a row, or more than 40 hours a week. Am I entitled to overtime?

Yes. All non-exempt employees in California are entitled to the protections and benefits of the laws governing payment of overtime and double-time wages. Pursuant to Labor Code §§ 510 and 1194 and Wage Order 7, employers are required to pay their employees one and one-half (1 ½) times the employee’s regular rate of pay for all hours worked in excess of 8 hour in a day and/or 40 hours per week.

I requested leave of absence to attend to a sickness I had, or a family emergency. And when I came back to work, I was fired. What are my rights?

Most companies provide “at-will” employment, meaning they can fire employees at any time for any legal reason. However, under the Family and Medical Leave Act (FMLA), eligible employees can take 12 workweeks of leave annually for the following reasons:

1. The birth, adoption or foster care placement of a child
2. The employee’s own serious health condition
3. Caring for a family member with a serious health condition
4. Family emergencies that qualify including serious injury, illness or a family member’s military deployment

You should qualify for a leave under the FMLA if you have worked at least 12 months for a private-sector employer with 50 or more employees, a public agency or a public or private elementary or secondary school no matter how many workers it employs. You must also have worked at least 1,250 hours the year prior to taking leave. In addition to meeting the eligibility requirements for FMLA, you must comply with your employer’s requirements for requesting a leave of absence.

If you have met all of the above conditions and believe your employer has violated your FMLA rights, you may have been wrongfully terminated.

I attended a company event, and I was sexually harassed by one of the employees. Am I still entitled to protections of the law?

Yes. An employer may be liable for sexual harassment if it occurs at an event or place outside of normal working hours, such as a company picnic, party, dinner, reception or other event in which the employees are in attendance because of an employment relationship.

Under California law, an employer will be liable for sexual harassment of a supervisor if the supervisor is acting within the scope of their employment when the unwelcome behavior occurs. This can also include instances when the harassment began at the place of employment and continued outside the place of employment. An employer can also be liable for the behavior of a non-supervisor if they knew or should have known that the harassment occurred and took no actionable steps to halt it, regardless of when or where the harassment occurred. Employers can also be liable for sexual harassment that occurs through email, text messages or on social media.

I am a temporary employee. I believe I am being discriminated at work. Am I still entitled to file a discrimination lawsuit?

Yes. A temporary employee, often referred to as a “temp,” is hired to perform a job but is not necessarily considered an official member of the company for which the job is being performed. Temp workers usually report to the recruiter from the temporary agency who placed them. Therefore, the temp is considered an “employee” of the temp agency, the company that hired the worker, or both. Because of this, the temp worker can be victim of discrimination from both the agency and the company.

Family Law

My partner and I live in different countries, and we have a child together. Which state controls our child custody case?

When parents live in different states, and a dispute arises as to which state controls, California courts are governed by the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA). UCCJEA ensures that each state has uniform laws that govern the treatment of their custody case. Facts that impact the determination of which state will ultimately make orders include where the child was conceived and born, the child’s home state, where the child lived for the most recent six months prior to filing, which state the child has the most significant connection to the child as well as other factors.

The UCCJEA is also pertinent where an emergency arises, or perhaps when a child is kidnaped by a parent, and absconds to another state or country. In the event the United States and another country are involved in custody matters, the rules contained within the Hague Convention will likely govern the dispute, if the other country belongs to the Hague Convention.

What's the difference between Divorce & Legal Separation?

The main difference between divorces and legal separations in California is that divorces are final. There are requirements in California for getting a divorce, however. Most notably that you need to have been a resident of the state for at least 6 months prior to filing for divorce. A legal separation removes this requirement and is available immediately.

Legal separations are good options for spouses who are interested in seeing if their differences can be worked out. Additionally, other factors like religious beliefs or maintaining tax or military benefits can factor into a decision to opt for legal separation instead of divorce.

How is child custody attained in California?

California courts will make orders pertaining to legal and physical custody of a minor child according to the child’s best interests. Legal custody determines each parent’s right to make decisions concerning the health, safety and general welfare of a child. Generally, parents share joint legal custody and have equal input concerning fundamental parenting decisions. Sole legal custody may be appropriate if there is domestic violence in the relationship.

Physical custody is the term used for the parenting plan determining where the child resides on a day to day basis. The primary custodial parent is the parent who cares for a child more than 50% of the time. Joint physical custody means that each parent spends 50% of the child’s time in their home. A parent with less than 50% of time with the child exercises visitation with the child. Visitation is granted to a parent unless it is detrimental to a child. The nature and frequency of the parenting time with the child varies in each case depending on the child’s unique needs, age, any numerous other factors.

How much child support should I expect to pay, or receive?

Child support is based on a calculated formula using a computer software, called a “Dissomaster.” The Dissomaster is employed by all Courts across California. Child support will vary in each case depending on each spouse (or partner’s) gross monthly income, the timeshare of visitation of each parent, and a few other criteria. Commonly, the Courts will consider the tax filing status of each parent, and deductions that are pre-approved by the Legislatures. These deductions are in the form of health insurance premiums, deductible interest expense, real property taxes, and spousal and child support paid from other relationships, as a few examples. Contact our firm to determine how we may be able to assist in you in either calculating, or defending, a child support case, and allow us to represent your interests.

Litigation Law

I keep hearing the word “contingency fee.” What is it?

A contingency fee sets the amount of the fee dependent upon the result obtained in terms of compensation to you. A contingency fee is a percentage of the total recovery in the case. (If no recovery is had, then the attorney's fee is zero. If you recover $100,000, customarily the attorney's fee will be one-third, or $33,000.) The contingency fee allows people with insufficient funds to hire an attorney on an hourly basis access to our courts.

I understand that some cases take years before the case settles. What are the benefits of Alternative Dispute Resolution? When should I use it?

Alternative dispute resolution (ADR) has many benefits as compared to traditional civil litigation. In most cases, ADR is going to be faster, less expensive, and generally less burdensome than going to trial. Discovery and motions practice are limited (if used at all), and you have the opportunity to select a mediator or arbitrator who has specific expertise in the subject matter of your case. If you are involved in an employment law matter, family law, or personal injury claim, our attorneys can advise you on when and how to make effective use of ADR.

There are so many attorney’s around me. How do I choose the right attorney?

Choosing an attorney should be done carefully. You will work with an attorney closely during your case and you want to be sure that the attorney is someone you will be comfortable working with.

Most importantly, you need to select an attorney who is well-qualified to handle the issues involved in your case. However, lawyers do in fact specialize or limit their areas of practice. It is always important to find a lawyer whose law practice specializes in the area involving your legal claims.

While the charges that may be involved for the legal services may be an issue, it should not be overriding in making your decision. On the other hand, you should never hesitate to ask about the charges of a lawyer and compare the charges by various lawyers. As in many instances, however, it may even be better to pay a little more in fees to get the best lawyer possible. The net return to you in a personal injury case, for example, would be much greater.

I believe that I am entitled to monetary damages. How does the process of bringing a claim work?

Bringing a claim most often involves filing a lawsuit with the courts and having it served upon the Defendants, or people that you are suing. However, much work must be done before the filing of such a lawsuit.

An appropriate investigation needs to be done to establish the basis of the lawsuit. Records need to be secured, witnesses may need to be interviewed, legal research may become necessary, and experts may need to be hired who can express opinions on the issues involved in the case. Only after proper due diligence has been done to establish the basis for a lawsuit, can a complaint be filed with the courts.

In some instances a claim can be filed with the insurance company by letter. It is sometimes possible to exchange information directly with the insurance company in order to reach an agreement on a proper evaluation of the case and a settlement of the matter without the need for filing suit. However, in today's climate and with the attitudes of most insurance companies, this is seldom possible.

How much will it cost for you to represent me?

This may be an important question to ask in your case, and the answer may well be different in each case. Some basic factors, however, are involved.

When involved in personal injury or wrongful death cases, most lawyers will agree to handle a case on either an hourly fee or a contingency fee basis. An hourly fee involves generally paying a retainer of a certain amount, and then being billed on a monthly basis for the work that is done. The more hours worked by the lawyer, the more the fees involved in the case. There is never any guarantee of a successful outcome in such an arrangement and, if the case were lost, the client is out all fees paid to the lawyers.

A contingency fee is a fee that is based on the outcome of the case. If the case is lost, then no fee is charged. If the case is won, generally a percentage of the amount of recovery is charged. Sometimes that percentage will vary depending upon the stage of the case which in turn reflects to some degree the amount of work that has to be done. In other words, the percentage may be lower if the case is settled early, a higher percentage if the case is settled very close to trial or only after trial starts, and yet a larger percentage if the case ultimately goes to an appeal.

I have limited funds. What does it cost to hire a lawyer?

We handle our employment law and personal injury cases on a contingency fee basis. This means that if our lawyers recover money for you, they receive a certain percentage as their fee. If they don't recover compensation for you, they don't get paid. You don't owe us anything upfront, except costs perhaps.

Our family law cases are handled on a hourly rate. The larger the complexities of your case, the more likely that your case will require a retainer and continuing payment for your case. However, each case is different, and you should find out more about your divorce or child custody case by speaking with our attorneys.