Employment Law

Employment Law FAQs

January 24, 2023 by Alreen Haeggquist

While employees have federal and state protections against discrimination, harassment, retaliation and other legal violations committed by employers, they often do not know where to begin. Employment laws can be confusing, and employers often challenge lawsuits by employees.

Below are some frequently asked questions by employees who believe they suffered harm from their employers. If you need to discuss your specific situation, reach out to an employment attorney directly for a free consultation.

Our San Diego Employment Lawyers help employees who suffered harassment, discrimination, retaliation, and similar harm from their employers. Contact our office today to learn more about a possible employment case.

Employment Law FAQ Guide

What if I cannot afford a lawyer?
How long do cases take?
Can I remain anonymous?
Will my case become a public record?
How many cases does your firm handle at a time?
Will I have to go to court?
How much time will I have to spend on the case?
How much is my case worth?
Should I quit my job before filing a lawsuit against my employer?
What if I already quit my job and now want to sue my employer?
I have never filed a lawsuit before. How will I know what to expect?
What if I was drinking when I was sexually assaulted?
Is your law firm trauma-informed?
What makes your law firm different?

What if I cannot afford a lawyer?

Dedicated Legal Team at Haeggquist & Eck LLP

A major hesitation people have when hiring an employment lawyer is the cost. If you recently lost your job or believe your job is in jeopardy due to conflicts with your employer, you have additional financial concerns on your plate. You might not have the funds to pay for legal services.

The good news is that employment lawyers who represent employees usually take cases on a contingency fee basis.

This means:

Case evaluations are free
You pay nothing up front to hire a lawyer or for them to begin your legal representation
The law firm can advance the legal expenses needed for your case
If you win compensation, your legal fees and reimbursement of legal expenses will come directly from your settlement or award – never from your pocket
If no compensation is recovered, then you will not owe any legal fees. Meaning if you don’t win, then your lawyer will not get paid.

This arrangement allows anyone to afford to hire an employment attorney. You have nothing to lose by setting up a consultation today about your legal options.

How long do cases take?

There is no simple answer to this question, as each case is different. There are various timelines from the start to the end of an employment case, depending on the path you and your attorney decide to take, how the employer responds and based on the court’s availability to decide a case. In our experience, cases typically can be completed as quickly as in six months and as long as eighteen months.

Once our attorneys initiate your case, we might engage in negotiations directly with your employer to settle the matter out of court. These negotiations can go back and forth for some time, or an employer might be immediately willing to settle to end the legal matter and avoid additional negative consequences.

If we need to file a lawsuit in civil court, the timeline of your case will depend on the court’s docket, the complexity of the case, the amount of evidence involved, out-of-court settlement negotiations, and other factors. If your case goes to trial, it will take longer than a case that settles.

While you are anxious to recover compensation for employment violations, never rush the process. Our team at Haeggquist & Eck LLP will always do what it takes to recover what you deserve as quickly and efficiently as possible.

Can I remain anonymous?

That depends on the case. In some cases, you can remain anonymous if you are a victim of domestic violence, sexual assault or stalking.

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Will my case become a public record?

HAE Wins Sexual Harassment Trial Against San Diego Sheriff's Department

If your case is filed in court, it will likely be a public record, allowing the general public to obtain details about your claim. In certain cases, it may be possible to ask the court to seal the records so that it does not become public record.

If, however, you and your employer resolve your case out of court before filing the complaint, it will likely not be part of the public record.

How many cases does your firm handle at a time?

Unlike firms where each attorney is handling hundreds of cases, at Haeggquist & Eck LLP, each attorney only handles 10-15 cases, so that each case can get the time and attention it needs and deserves.

Will I have to go to court?

Whether you have to go to court depends on different factors, such as the strength of your case, the amount of compensation that may be at stake, and whether the employer is willing to compensate you in an amount you are owed. For example, if your case is very strong, your employer will likely want to avoid the costs of litigation and settle out of court.

On the other hand, if your case does not seem as strong, your employer may be more comfortable taking the chances associated with litigation and defending against your claim in court. In addition, employers are more likely to aggressively defend cases that involve substantial compensation to employees.

Going to court is something we carefully consider, and we will thoroughly discuss your options with you. We are skilled negotiators and litigators, so we can zealously represent you both in and out of court.

How much time will I have to spend on the case?

Every client is essential to the success of their own case, but we will help you navigate the legal process. Your employment lawyer will handle all communications and filings, and we will reach out to you when we need pertinent information to proceed with your case. At Haeggquist & Eck LLP, we spend more time with our clients at the beginning of a case gathering all pertinent information you have in your possession and then provide you with monthly updates on how the case is progressing.

How much is my case worth?

The compensation you can recover through an employment claim depends on your damages. It is impossible to determine how much you might recover without conducting a thorough analysis of the facts of your case. Some factors that may affect the amount of compensation you receive include where you live, your occupation, the severity of the wrongful conduct, and the strength of your evidence.

What you can count on is that our legal team at Haeggquist & Eck LLP will consider all of your unique circumstances to accurately calculate how much your case is worth.

Should I quit my job before filing a lawsuit against my employer?

Contrary to what you might think, not everyone who pursues an employment claim must quit their jobs. Often, your lawyer can resolve the matter amicably between you and your employer. If you are considering quitting your job because of an intolerable or hostile work environment, discuss it with our employment lawyers first when possible. We can help you determine the best course of action to protect your rights.

What if I already quit my job and now want to sue my employer?

If you have already ended your employment, you should discuss your options with our lawyers right away. Never sign any agreements with your employer at the termination of your employment unless you have an attorney review the terms of the agreement. You might be signing your rights away.

Most employees can still file a claim if they have already quit their jobs. We can assess your circumstances and determine your options.

I have never filed a lawsuit before. How will I know what to expect?

Most people have little to no experience with lawsuits or the legal system. The good news is that our employment lawyers have plenty of experience with employment lawsuits and can advise you on what you can expect. Feel free to ask any questions about the process so we can provide the answers you need. Our goal is for you to feel comfortable with the legal process, and we take the time necessary to explain everything to our clients.

What if I was drinking when I was sexually assaulted?

If you were drinking at the time that a sexual assault took place, you might have concerns that the fact that you were drinking might go against you. The fact is that many cases of workplace sexual harassment or assault take place at company holiday parties or happy hours where alcohol is present.

The fact that you were consuming alcohol when inappropriate conduct occurred does not excuse or justify the offensive conduct. That said, your employer may attempt to make an argument that your recollection of events is cloudy because you were consuming alcohol or that you somehow invited the conduct in question.

For this reason, you always need to work with an experienced sexual assault lawyer from the outset of your case. When the right lawyer represents you, they can ensure that your employer does not get you to say something that they can use against you at a later time.

We understand that you might not want to discuss your sexual assault with strangers. Our lawyers at Haeggquist & Eck LLP know how devastating sexual trauma can be, and we have a safe space for you to be open and honest about what happened. By telling us the complete story, including whether you were drinking, we can anticipate any defenses the opposing side might bring up.

We never blame sexual assault survivors for what happened, even if alcohol was part of the equation. We are on your side and ready to listen to your story and represent you with compassion.

Is your law firm trauma-informed?

We understand that many employment law cases involve highly sensitive issues, often related to sexual harassment or other personal matters. As a result, we approach each case with the care and sensitivity it deserves for clients who have gone through traumatic experiences.

Among the techniques we may employ in our trauma-informed advocacy are providing accommodations for client interviews that involve discussing difficult events or engaging in extensive witness preparation to help manage anxiety. We have a Survivor Advocate on staff that not only has extensive training on being trauma informed, she is there for you whenever the need arises.

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Speak with one of our experienced lawyers to learn more about your specific case.

What makes your law firm different?

We are a group of highly passionate and empathetic individuals, who understand what you are going through because we have experienced similar situations and have gone through similar trauma. To us, you are not just a case. Our personal injury lawyers make you part of our Haeggquist & Eck LLP family and will not stop until you get the justice you deserve. You can see what sets us apart here.

What Is Unlawful Retaliation at Work?

October 12, 2022 by Haeggquist & Eck

At work, you want to feel as safe as you can in your work environment. You don’t want to feel threatened by your employer because you did the right thing. Unfortunately, that’s how many employers choose to treat their workers.

Many workers will think of ways to retaliate against their workers when they file complaints against them. When they do so, they’re violating the law. If you feel you’ve been the victim of unlawful retaliation at work, immediately find out about your legal rights from a San Diego retaliation lawyer.

What is retaliation?

Retaliation is the action that employers take to punish employees for making complaints against them. As an employee, you have the right to exercise your whistleblower rights.

Whistleblower rights are the rights you have to report your employer’s illegal actions. These illegal actions include actions that violate your federal and state employee rights. These rights include the right not to be discriminated against, sexually harassed, or shorted on your pay.

When employers take adverse actions against you after you’ve filed a complaint, those are retaliation actions.

Adverse actions of employers

Adverse actions are the actions that employers take shortly after you’ve reported them. These actions include termination, reducing your salary, altering your work schedule, and denying you a promotion.

Common signs of retaliation

While some actions might not be clearly retaliative, there are some social cues you can pick up on that can indicate retaliation. One of those cues involves being excluded or left out. You might not receive invitations to important meetings or get work opportunities as you normally should.

If your managers begin to give you the silent treatment, for example, that is an example of retaliation. Another example is experiencing bullying or harassment after you exercise your rights. If you experience attitude changes toward you after reporting unlawful conduct, you are likely experiencing retaliation.

Suppose you filed a complaint against a popular supervisor for making sexist or racist remarks against you, and your coworkers responded by starting rumors about you. That can be an example of retaliation.

Proving retaliation on the part of your employer

How can you prove that you suffered from retaliation?

You must prove your employer’s actions through three factors:

It happened after you participated in a protected activity
You suffered a negative workplace consequence because of the action
Your protected activity caused your employer’s action

Your protected activity is any activity that falls under your rights as an employee. This includes speaking out against discrimination, sexual harassment, or your employer’s illegal conduct.

Filing a workers’ compensation claim and engaging in certain political activities are protected. When your employer has committed action against you after you have engaged in your protected activity, that is an example of retaliation.

Your rights as an employee

Your employee rights stem from several federal and state laws.

For federal legislation, the following Acts are responsible for establishing your employee rights:

Fair Employment and Housing Act (FEHA)
Title VII of the Civil Rights Act
Americans With Disabilities Act (ADA)
Age Discrimination in Employment Act (ADEA)
Fair Labor Standards Act
Whistleblower Protection Act (WPA)
Family and Medical Leave Act (FMLA)

Discrimination in the workplace

Discrimination in the workplace is illegal under FEHA and Title VII, which prohibit discrimination based on race, sex, gender, national origin, and religion.

You have the right to file a discrimination complaint when your employer overlooks you for a promotion because of your race. When your employer retaliates against you for filing a discrimination complaint, that’s another complaint that you can file against your employer.

Sexual harassment

Title VII of the Civil Rights Act also makes sexual harassment illegal. Sexual harassment is any unwanted sexual activity within the workplace. It is an illegal action that happens in every occupation.

Sexual harassment can be verbal and nonverbal. It can include explicit hand gestures and email messages. If your employer demotes or terminates you for resisting their sexual advances, that is unlawul retaliation.

Your whistleblower rights

The Whistleblower Protection Act (WPA) establishes your whistleblower rights. It also protects you while enforcing your rights.

Many people think of large political issues when it comes to whistleblowing. But whistleblowing can cover a range of illegal activities.

When your employer creates a hostile work environment for you, you are exercising whistleblowing rights when you report their behavior. This act prohibits employers from retaliating against employees who participate in whistleblowing. That means that any form of retaliation is considered illegal.

Wage and hour rights

The Fair Labor Standards Act is responsible for your mandatory wage and overtime rights.

This act entitles you to fair pay. That means you must receive proper compensation for each hour you’ve worked, including minimum wages and overtime rates as applicable.

It is considered unlawful retaliation when your employer retaliates against you for fighting for your compensation.

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law that grants employees up to 12 weeks of unpaid, job-protected leave for medical and family reasons.

It is a federal violation for employers to violate your FMLA rights. Employers can violate your FMLA rights when retaliating against you for taking your leave.

Wrongful termination

One form of unlawful retaliation is wrongful termination. Although generally employment is “at will,” many employees may not know that some terminations or unlawful. Wrongful termination is when an employer terminates an employee for an illegal reason. If your employer fired you because you complained about being discriminated or sexually harassed at work, that is wrongful termination.

How retaliation affects the workplace

Many negative consequences come with retaliation at work. One of those consequences is employee morale. When an employer goes out of their way to retaliate against you, it not only brings you down.

It can bring your coworkers’ morale down. It’s hard for you and your coworkers to focus on your job when you also have to worry about your employer’s actions.

Legal consequences

Employers who retaliate against their employees can be found liable in court or arbitration. If you are the victim of your employer’s retaliation, you can sue them for different damages.

In addition to economic damages, you can sue for emotional distress. If your employer’s actions were very egregious, the jury might also award punitive damages.

Issues with proving retaliation

In order to establish retaliation, you have to show causation. You need to demonstrate a causal connection between the protected activity and your employer’s adverse action against you.

Remedies for retaliation

If your employer retaliates against you, you can seek compensation for lost wages and emotional distress. Your employer might even have to take steps to ensure that retaliation doesn’t happen again.

What to look for in a retaliation case

When determining the success of your retaliation claim, an employment lawyer will look at:

Evidence that you experienced some form of illegal harassment
Evidence that you engaged in a protected activity
Evidence of the adverse action that your employer took against you
Evidence of the damages that you’ve experienced as a result

How to prevent retaliation in the workplace

There are ways for your employer to avoid retaliation in the workplace. Employers must first know their responsibilities. They must understand that no matter how they feel, they can’t retaliate against you.

Another thing employers need to do is treat all employees fairly. Your employer should also incorporate an open-door policy where you feel comfortable expressing your concerns about anything.

Contact an experienced employment law attorney today

When you have retaliation at work, reach out to an experienced San Diego employment law lawyer today.

See how an attorney can help you obtain the compensation you deserve for your harassment. Contact an experienced employment law attorney to discuss your situation and find out how you can hold your employer responsible for their retaliation.

Overview of California Minimum Wage and Overtime Requirements

August 29, 2022 by Christy Heiskala

No matter your occupation, you want to ensure that you receive payment for the time you worked. If your employer asks you to work overtime, you want to ensure that your paycheck reflects each hour – and partial hour – you work overtime. When employers fail to pay employees their overtime and minimum wage requirements, it is not just unethical but illegal in California.

Federal and state laws require employers to pay their employees minimum and overtime wages. When your employer violates your wage rights, you need help from an experienced wage and hour lawyer to review your case and fight for your rights to proper compensation.

What is the Fair Labor Standards Act (FLSA)?

The federal legislation that helps establish mandatory wage laws for employees is the Fair Labor Standards Act (FLSA). This federal law incorporated mandatory minimum wage and overtime pay requirements for all federal, state, and local government employees and the private sector. This law entitles all non-exempt employees who work over 40 hours per week to one-and-a-half times their regular pay.

California minimum wage requirements

In addition to the FLSA, California state law requires employers to pay employees a required minimum wage rate. California laws are more employee-friendly than federal law (or most other states), so the minimum wage requirements are stricter in the Golden State.

The minimum wage for companies with more than 25 employees is $15 an hour, while smaller companies must pay $14 per hour. Certain localities have higher wages, so employers and employees should stay aware of state and local laws. The minimum wage laws routinely increase in California, and employees should always know what they deserve per hour and ensure they receive the proper wages.

Exempt employees

Federal and state laws require all employees to receive the minimum wage. This means that even if an employee agrees to work for less than the wage rate, they cannot lawfully do so. Each employee should receive at least the minimum wage rate except for a few groups working specific jobs.

Some workers who are exempt from the California minimum wage requirements include:

National service program participants
Mentally or physically disabled employees participating in authorized nonprofits and rehabilitation institutions
Student employees
Camp counselors
Organized camp program counselors
Outside salespeople

If you do not work in one of the above professions, you should receive the minimum wage – or more – for every hour you work for your employer. If you do not, you might have a wage claim against your employer, and you should seek a consultation with a wage and hour attorney immediately.

Additional exceptions to minimum wage requirements

In addition to the other groups of exempt employees, independent contractors are also exempt from receiving minimum wage rates from employers. Independent contractors are workers who perform services for other employers while maintaining full control of how they work. Because independent contractors are not under the control of an employer, they are not entitled to the benefits that other employees will receive while working with the employer.

Employers will often misclassify employees as independent contractors to avoid paying employment taxes and the wages and benefits employees deserve. Employers can be liable for this deliberate violation when they misclassify employees as independent contractors. If you believe a company misclassified you and denied you proper wages, seek legal help.

Overtime pay requirements

Just like in other states, California considers eight hours a regular workday. Employees who work past 40 hours in a workweek have the legal right to receive one and one-half times the regular rate of pay they earn. Employees who work up to 12 hours in a workday are entitled to this overtime pay requirement. Employees who work past 12 hours in a workday are entitled to receive double their regular pay rate.

Exemptions to overtime pay requirements

As with the minimum wage, not every employee receives overtime pay.

The law exempts these employees from receiving overtime pay:

Administrative employees
Computer employees
Executive employees
Licensed professionals
Outside sales employees

In California, exempt employees must earn at least $1,120 a week if employed by a company with 25 employees or less. Workers at a company with 26 or more employees must earn at least $1,200 weekly.

Employees should expect to receive fair pay for the hours of overtime they worked, regardless of whether the employer authorized overtime or not. That means that if an employer withholds an employee’s overtime pay for working unauthorized overtime, they can be legally liable for wage and hour violations. Employees should receive mandatory overtime pay rates when they work overtime.

When employees must receive overtime wages

Another wage and hour violation that employers can commit is delaying overtime wages to employees. Employees must receive overtime wages by the next payroll period after they earn them. An exception might allow employers to delay payment until the second-next payroll period. When employers unlawfully delay the overtime wages that employees deserve, that is a serious wage and hour violation, and employers should face liability.

Violating overtime and minimum wage laws in California

There are several reasons employers violate their employees’ wage and hour laws. The main reason is to save money. Other reasons include discriminating against certain employees based on race, age, and gender. Some employers make unintentional mistakes while dealing with payroll and forget to include the overtime wages for every employee.

Regardless, you have the right to sue when your employer violates your wage and hour rights. It does not matter whether the violation was intentional you have the right to hold your employer liable for unpaid wages.

Employers violate minimum wage and overtime pay laws by:

Misclassifying employees as independent contractors
Failing to pay the standard minimum wage rate to employees
Failing to pay employees when they work during rest or meal breaks
Illegal deductions from an employee’s wages
Failing to keep an accurate record of hours worked or pay for all time worked

Employers can be liable in civil court when they commit these wage and hour violations. If you believe your employer has violated your wage and overtime rights, be sure to speak with a wage and hour attorney as soon as possible about your situation.

Legal options when you believe your employer violated your wage rights

When your employer withheld your wages or otherwise failed to pay you the wages you earned, they committed a wage violation under FLSA and California law. There are different methods to enforce your rights and seek legal relief. A wage and hour lawyer can explain your legal options in further detail, as your wage claim can proceed in several ways.

Informal negotiations

The first way is through informal negotiations and a settlement, which many employers may offer to avoid a trial. Simply having a lawyer contact your employer might be enough to resolve the matter.

Employers often make errors they will correct to avoid further legal action. Your lawyer will inform your employer how much you need for your unpaid wages, and your employer might pay you shortly to resolve the matter quickly and quietly. Avoiding a public wage case can protect the employer’s resources and reputation, which is often where the process starts.

Labor Commissioner or DOL claims

Your attorney can help you file a wage claim with the California Labor Commissioner’s Office or the Department of Labor (DOL). These agencies enforce wage and hour laws and investigate employers for violations. Because California wage laws are stricter than FLSA, many employees file wage claims on the state level instead of with the federal DOL. In other states, federal claims might be more common.

Your lawyer can handle the entire process of filing your claim and navigating the investigation process on your behalf. Suppose the Labor Commissioner’s Office finds your employer violated the state Labor Code. In that case, it can impose penalties on your employer and order the company to pay your unpaid wages, among other financial recovery.

Civil Lawsuit

Your lawyer might also file a lawsuit in civil court to seek your unpaid wages. Your case will follow standard litigation procedures, including a trial if necessary. Your employer might agree to settle during litigation, or you might have to put your case in the hands of a judge or jury.

Some wage violations affect numerous employees from the same organization, as an employer’s policies might deprive large groups of their rightful wages. When this happens, your lawyer might recommend a class action lawsuit, which combines all of your wage claims into one large lawsuit against your employer.

Why do you need a wage and hour lawyer?

Because the Labor Commissioner regularly oversees wage and hour issues and enforces the law, you may think you do not need to hire a wage and hour lawyer. This is incorrect, as hiring a wage and hour lawyer to handle your lawsuit will benefit you greatly.

A wage and hour lawyer can explore many options to obtain significant outcomes that representatives from the Labor Commissioner cannot. A wage and hour lawyer can protect your legal rights and secure the compensation you deserve.

Laying out your legal options

Depending on your wage and hour violation, your lawyer can decide on the best method to resolve your matter. As we discussed above, a wage claim can take many paths. Your lawyer can determine the best course of action, given your circumstances and the willingness of your employer to cooperate and admit liability.

Assessing your damages

Another way a wage and hour lawyer can help you is by assessing the damages of your lawsuit. Your lawyer can identify many damages you may not consider in your claim. In addition to the unpaid wages you seek, you can include your lawyer’s fees as damages and enforce additional legal penalties employers should pay under the law. California, for example, has a “waiting time” penalty where an employer must pay the equivalent of 30 days of an employee’s unpaid income.

Providing personal attention to your lawsuit

The right wage and hour lawyer will exhaust all options possible to recover the most compensation from your lawsuit. If settlement negotiations do not work, they can move on to a Labor Commissioner claim or lawsuit. They know your options under the law and take time to pursue every available avenue to obtain your unpaid wages.

Operating on a contingency fee basis

Another benefit of hiring a wage and hour lawyer is that they work on a contingency fee basis. With a contingency fee arrangement, you agree to pay your lawyers’ fees from a percentage of your compensation when you win your lawsuit. Instead of paying hourly fees, which can become expensive for some clients, your lawyer will set up an arrangement to receive a percentage of your compensation. This arrangement is beneficial for both you and your wage and hour lawyer. You do not stress about paying your lawyer out of pocket, and your lawyer will do their best to help you obtain maximum compensation.

Consult with an experienced wage and hour lawyer today

What is the Fair Labor Standards Act (FLSA)?

California minimum wage requirements

Exempt employees

Some workers who are exempt from the California minimum wage requirements include:

National service program participants
Mentally or physically disabled employees participating in authorized nonprofits and rehabilitation institutions
Student employees
Camp counselors
Organized camp program counselors
Outside salespeople

Additional exceptions to minimum wage requirements

Overtime pay requirements

Exemptions to overtime pay requirements

As with the minimum wage, not every employee receives overtime pay.

The law exempts these employees from receiving overtime pay:

Administrative employees
Computer employees
Executive employees
Licensed professionals
Outside sales employees

In California, exempt employees must earn at least $1,120 a week if employed by a company with 25 employees or less. Workers at a company with 26 or more employees must earn at least $1,200 weekly.

When employees must receive overtime wages

Violating overtime and minimum wage laws in California

Employers violate minimum wage and overtime pay laws by:

Misclassifying employees as independent contractors
Failing to pay the standard minimum wage rate to employees
Failing to pay employees when they work during rest or meal breaks
Illegal deductions from an employee’s wages
Failing to keep an accurate record of hours worked or pay for all time worked

Legal options when you believe your employer violated your wage rights

Informal negotiations

The first way is through informal negotiations and a settlement, which many employers may offer to avoid a trial. Simply having a lawyer contact your employer might be enough to resolve the matter.

Labor Commissioner or DOL claims

Civil Lawsuit

Why do you need a wage and hour lawyer?

Laying out your legal options

Assessing your damages

Providing personal attention to your lawsuit

Operating on a contingency fee basis

Consult with an experienced wage and hour lawyer today

Alreen Haeggquist - Fair Labor Standards Act Wage Claims Attorney in San Diego — **Alreen Haeggquist – Minimum Wage and Overtime Requirements Attorney**

When your employer fails to pay you the wages you deserve, they violate your legal rights under the law and cause you financial losses. Your employer must be accountable for failing to pay you what you earned. Holding them liable is not always easy, especially when your employer denies a violation or tries to cover up unlawful conduct.

Employment law is a particular area of law with different procedures and nuances. You need a wage-and-hour attorney handling your claim from the start.

Reaching out to an experienced wage and hour lawyer will relieve stress and help you clarify how best to proceed. The sooner you speak to an experienced attorney, the sooner you will know your rights and how to protect them.

Should I Sign the Severance Agreement My Boss Gave Me?

January 25, 2022 by Haeggquist & Eck

Evaluating Whether It Makes Sense To Accept a Severance Package Offered by Your Employer

Losing your job is often a frightening experience, and you may feel financially vulnerable if you are unsure of where you will find your next employment opportunity. When you are being laid off, your employer might ask you to sign a severance agreement – a contract, which typically includes some level of monetary compensation in exchange for a release of your legal rights.

Should I Sign a Severance Agreement?

Signing a severance agreement to obtain a much-needed payout can be understandably tempting, but you should always be careful to protect your interests. Employers will often use severance agreements to restrict your rights in pursuing legal action against them in the future. Consequently, you must thoroughly review the terms of any severance agreement and weigh the pros and cons of signing. Below, we review many of the questions you should be asking, what to watch out for, how and when you should negotiate, and other important factors to consider.

Why Are You Being Offered a Severance Package?

It is important to understand that businesses operating in California are in no way obligated to necessarily offer you a severance package when you are being terminated. This is true even if you are being dismissed due to factors outside your control, like a company-wide layoff. Therefore, you must evaluate why your company has chosen to offer you a severance package and what they hope to gain from you signing a severance agreement.

Note that severance packages can sometimes be obligatory if there are provisions requiring one in your employment agreement. A mandatory severance offer is often included for senior executives and other salaried employees. Unions can also sometimes require some level of severance be offered. An employer might openly have a policy to offer severance packages as a reward for company loyalty.

Absent an existing contract or company policy, however, an employer is most likely to offer a severance package when they seek to protect themselves from future legal action. To accomplish this, the company will attempt to incentivize you to sign a severance agreement, which will voluntarily restrict some of your rights.

If all of this sounds a bit dubious, be aware that severance agreements in most circumstances are considered perfectly acceptable by California courts. Many common provisions of a severance agreement are legally enforceable. In some cases, employers may attempt to include terms that are not enforceable and will not hold up to scrutiny in court. You must also sign the severance agreement voluntarily.

What Are the Terms of the Severance Agreement?

In order to receive the monetary incentives of a severance package, you will first have to sign the severance agreement. It is critical you understand that these terms are seeking to protect the company, not you. Never sign a severance agreement without carefully reviewing its contents. Make every effort to understand what each item means and how it can impact your future rights.

Common provisions of severance agreements include:

Non-disparagement requirements. This means you will not be permitted to publicly speak negatively about, or “disparage,” the company or its employees.
Restrictions on your rights to file future lawsuits against the company. Signing a severance agreement can mean voluntarily relinquishing the ability to file or participate in lawsuits against the employer, even in situations where there is a legitimate offense. These types of clauses typically preclude you from pursuing cases involving wrongful termination, employment discrimination, sexual harassment, and retaliation.
Non-disclosure agreements. In many cases, you will have already signed some form of a non-disclosure agreement, or NDA, as a condition of your past employment. A severance agreement will often reaffirm, renew, or modify the terms of a previously signed NDA. Additions often include restrictions on speaking about why you were dismissed and the terms of your severance package.

Generally, these types of severance agreement terms are considered legally enforceable. This means that if you violate the agreement, your employer has the option of filing a lawsuit against you.

Are There Any Red Flags in Your Severance Agreement?

As we mentioned above, there are some terms that employers will sometimes insert into severance agreements that are neither lawful nor enforceable. In these situations, an employer is banking on an employee not understanding their rights and not having the resources to litigate the matter should it later become a point of contention. Consequently, it is important to identify problematic terms and address them before an agreement is signed.

Examples of terms an employer cannot enforce in a severance agreement include:

Requirements that force you to lie under oath. While an employer can include non-disparagement and nondisclosure clauses, they cannot force you to lie if called to testify in court.
Requirements restricting your ability to report crimes. While a severance agreement can preclude you from filing lawsuits against a company, they cannot prevent you from reporting crimes carried about by the company or its employees.
Non-compete clauses. There are some very limited situations where an employer may be able to specify you cannot work within a given industry for a certain amount of time after your dismissal. California has historically rejected any attempt to enforce these provisions.
Any relinquishing of owed wages. An employer cannot lawfully deny you wages that you have earned, including overtime, and unused vacation days. It should also be noted that an employer cannot delay the payment of final wages due to an ongoing severance negotiation.

If one or more of these types of clauses appear in your severance agreement, proceed with extreme caution. Do not sign the severance agreement without first consulting with an experienced employment lawyer.

What Is Included in Your Severance Package?

There is no reason to sign a severance agreement without a robust severance package to justify your relinquishing numerous rights. Companies typically set their own policies on the monetary size of a given package or determine them on a case-by-case basis.

In most cases, the amount offered in a severance package will scale with the number of years that you have been employed at the company. On the lower end, a terminated employee can expect to receive a week’s pay for each year worked at the company. For example, if a person worked at a company for 5 years, they would potentially be offered 5 weeks’ pay in their severance package.

Employers could potentially offer more, with some companies choosing to offer 2 weeks’ pay or even a full month’s pay for each year worked. Your employment or union agreement might also specify the minimum amount of a severance package.

High-ranking executives can even potentially receive a “golden parachute,” a lump sum severance package that is in theory a reflection of their contributions to the company. These larger deals are often negotiated in advance as part of an employment agreement when an executive joins the company.

Can You Negotiate the Size of Your Severance Package?

There is no rule preventing you from attempting to negotiate the terms of your severance agreement or the size of your severance package. You should always know your worth and take the necessary steps to protect your interests.

Keep in mind that severance agreements tend to be inflexible, with companies often refusing to budge on modifying common terms like non-disparagement causes. The only major exception is when concerns about a legally questionable or unenforceable provision are raised. Your employer is likely to take you more seriously if you retain legal representation to assist you in contesting objectionable points.

You may have more luck when negotiating the monetary size of your severance package. Remember that you are under no obligation to sign any severance agreement and can walk away at any time, meaning you may have some leverage in asking for a larger payout. Your employer might attempt to lowball you with a paltry severance despite years of loyal commitment to the company. If you are only being offered one week’s pay per year worked, consider asking for two week’s pay per year. There is generally no harm in countering, and companies are incentivized to do whatever it takes to get a severance agreement signed.

Note that you may have a limited ability to counter depending on your circumstances. Those who belong to a union may have negotiations handled on their behalf by their representatives. An employment agreement might also explicitly lay out the terms of a guaranteed severance offer.

If you have only been at a company for a short amount of time, a severance package may not be offered at all. If you do receive an offer, you will likely not have much room to negotiate, as by that point you will only have made limited contributions to the company.

Are You Considering Legal Action Against Your Employer?

This is perhaps the most important question to consider when evaluating whether you should sign a severance agreement. Most of the rights you give up when signing a severance agreement hinge your ability to participate in legal action taken against your employer.

If you believe you were wrongfully terminated or retaliated against by your employer, you should not sign a severance agreement without first consulting with a lawyer. It can be tempting to accept the immediate lucrative benefits of a severance package, but it is critical that you not give up your rights in the process. A successful wrongful termination lawsuit can lead to the reinstatement of your job, the recovery of lost wages, and awards for punitive damages. In addition to holding your employer accountable for their actions, you will likely receive more money as part of a successful legal action than you would through a severance package.

Employers understand this, which is why their only priority is to protect themselves by limiting financial liabilities. It is typically more cost-efficient to pay a hefty severance package versus undergoing a legal battle waged by a former employee, even if the matter is eventually settled out of court.

Why You Should Seek Help From an Attorney

First, your attorney can review your severance agreement and advise you of potentially adverse provisions in the contract. If you received a severance agreement, your employer (more likely than not) used an attorney to help them draft the agreement.

In using an attorney to help them draft your severance agreement, your employer likely took every opportunity to insulate themselves from a great deal of future risk. For example, most severance agreements contain provisions that make it so that you cannot disclose what you learned or heard while in the workplace and may include penalties if you violate the provision.

Additionally, most severance packages will have some form of limitation of liability on behalf of the former employer. Once you sign the severance agreement, you can no longer sue your employer for any damages for discrimination or other unlawful conduct, such as wage and hour violations. If your employer violated your rights, you give up your ability to take legal action when you accept the severance.

If you are not sure whether or not your severance package will fully cover what you thought it should financially, signing means you can likely never do anything about your concerns. The severance agreement will have been carefully constructed by your former employer’s attorney so that it limits your rights while maximizing the benefits to your former employer.

Even if your former employer does not have an attorney helping them create the severance agreement, you need your own attorney to help you. Your employer might have included illegal provisions in the agreement or could violate laws or statutes in the language that they used.

What they include could be unenforceable, or it could be enforceable and put you in a negative position. Without legal guidance when drafting an agreement, the agreement could be detrimental to either party signing it.

Severance Packages Often Include Non-Disclosure Provisions That Could Expose You to Liability

The contents of your severance package will likely include provisions that require that you not disclose information that you learned while you were employed. This could include information that is essential to the job or trade that you learned and would be valuable to you in your working life after your time with the company.

Non-disclosure agreements can also include penalties and other provisions that could expose you to future liability or litigation. Former employers are not always honest or positive in their intentions, and a carefully crafted non-disclosure agreement could make it so that you have a difficult time getting a job in a similar company or the same industry without exposing yourself to costly litigation in the future.

Non-Compete Clauses in Your Severance Package Could Make You Unemployable

When you are losing your current position and receive a severance package offer, you are likely going to be considering what you will do next to earn a living and support your family. Without a steady income, your financial stability might maintain for a decent amount of time, but the economy is not always stable, but the inflation rate has been on the rise in a very stable way.

Keeping this in mind, knowing that you can line up valuable employment that puts your skills and experience to use is important. However, your severance package might include a non-compete clause that prevents you from working for another company in the area or industry for some time.

A non-compete clause might not seem especially intimidating at the moment of signing your severance package, as you are also ideally getting a check alongside your severance agreement. You can rest assured that this check is as low as possible from the perspective of the employer, as they intend to maintain profitability while getting rid of the employee they are breaking ties with.

The severance package might seem to cover some of your lost wages or salary and other work benefits for some time, but unless you are getting a platinum parachute like the disgraced executives of corporate American during the banking crisis, your settlement amount will run out, and you will be seeking out additional employment.

Losing Employment Value Can Entitle You to Legal Relief

Some severance agreements prevent you from putting your valuable experience and education to work for you. When this happens, your specialty degree with a high student loan payment becomes a liability, as you cannot work in the field, but you still have to keep making student loan payments.

Employers cannot enforce some non-compete agreements for this reason.

When your non-compete agreement prevents you from finding gainful employment that is equal in value to what you did before, a court may refuse to enforce it.

While you might think that you have to take a lower-paying job in another industry or work a lower position because of the severance agreement you signed, this may not be the case. In fact, if you did not work in gainful employment for a considerable amount of time and missed out on wages and benefits because of an unconscionable severance package and non-compete agreement, you could even seek damages.

Your Employment Attorney Can Help You Collect Your Full Benefits

When you receive a severance offer that seems lower than it should be or fails to effectively cover what it should, your employment attorney can help. Our experienced California employment attorneys have handled many cases involving severance and know the norms.

Employers and their lawyers take advantage of employees who have never gone through a severance negotiation by offering them as little as possible while encouraging them to sign as quickly as possible.

Your employment attorney will step into your shoes, take over all negotiations, and ensure that you receive the fullest possible severance package that your employer is willing to provide. If you already accepted a severance agreement, your attorney might have a solution.

If you have questions about whether you should sign a severance agreement or believe you are the victim of wrongful termination, call (619) 342-8000 or contact us online to schedule a free case evaluation.

Am I Entitled to Paid Sick Leave in California?

November 26, 2021 by Haeggquist & Eck

There are a variety of benefits that are available to employees in California, and one of them is paid sick leave. Accruing paid sick leave and being able to use it is a benefit that, as we will explore below, the law established in California in 2015. If you are a qualified employee who meets the criteria, you should accrue paid sick leave through your qualified employment, and the leave will be available when you need it due to illness or related issues.

Some populations, however, are exempt from the law and may not be able to collect on paid sick leave like other employees in the Golden State. Read on to learn more about paid sick leave and how an employment attorney can ensure you collect what you are entitled to.

To Collect Paid Sick Leave in California, You Must Be Qualified

To collect on paid sick leave in California, you must meet the requirements to qualify. To qualify for sick leave, an employee must work for the same employer, so long as it began on or after January 1, 2015, for at least 30 days within a year in California. Paid sick leave began to accrue for employees starting on July 1, 2015.

Additionally, the employee must satisfy a 90-day empowerment period before taking any sick leave, which is similar to a probationary period. Qualifying for paid sick leave depends on first meeting the initial duration of time worked, while the period of employment must next meet the 90-day requirement.

What Employees Can Get Paid Sick Leave in California?

Knowing whether you are entitled to sick leave in California is important before beginning to collect benefits, and you can often determine this by the characteristics of your employment.

In California, all employees who work for the same employer within a year in the state have rights under the sick leave law enacted in 2015. This includes part-time, per diem, and temporary employees, in addition to full-time employees. Whether you are a full-time or a part-time employee, you will have the capacity to accrue and use paid sick leave in the state. If your employer takes any steps to try to prevent you from using such paid sick leave benefits, reach out to a local employment attorney to discuss what legal relief or compensation might be available to you.

Certain Employees are Exempt From the Paid Sick Leave Law in California

Most employees who meet the basic qualifications can collect paid sick leave. However, not all employees are eligible, as some are exempt from this law’s protections. The first population of persons exempt from the paid sick leave law is providers of publicly funded in-home supportive services, although only until July 1, 2018.

Union employees with specified sick leave provisions may be exempt from paid sick leave, depending on their collective bargaining agreement. Additionally, individuals who work for air carriers – including flight deck or cabin crew members – are exempt from the paid sick time leave if they receive compensated time off that is at least the equivalent of the requirements of the new paid sick leave law.

Independent contractors are exempt from paid sick leave requirements, as they generally do not have coverage under employment laws as employees do. Companies such as Uber and Lyft pushed California voters to overturn the law that required drivers to have employee status. Once Prop 22 passed, rideshare drivers lost their hope of employee status, which would have brought many benefits, including paid sick leave.

Finally, retired annuitants working for governmental entities will not automatically receive paid sick leave in California. If you are not sure whether you are in one of the exempted populations, discussing the facts and circumstances of your situation with an employment lawyer will identify your rights and how you can best uphold them.

Collective Bargaining Agreements and Paid Sick Leave

Collective bargaining agreements are common in the modern employment environment, especially with companies that want to operate outside of particular employment laws and regulations. When an employer uses their unequal bargaining power to pressure employees into accepting agreements that are not in their best interests, the agreements may not be enforceable, and those impacted may be able to recover damages.

The fact that your employer has a collective bargaining agreement does not mean it was bargained for the collective good of the employees. If your employer denies you paid sick leave, and you believe a collective bargaining agreement in place at your work is wrongfully causing this, you should learn whether you can take legal action.

Connect with a local employment attorney to discuss your case and determine what options might be available to you in terms of collecting on the lost value of paid sick leave you were entitled to.

Why Should I Hire an Employment Attorney?

If your employer denied you the benefits you deserve, your employer violated your rights, and the law provides remedies for those in this situation. Going against your employer personally can be stressful and intimidating, and also you can be at a significant disadvantage if your employer has experienced legal representation of their own.

Companies that avoid paying out benefits to entitled employees are often engaging in willful misconduct to the detriment of those who help them generate a profit. An employment attorney has experience working on similar cases and knows what damages are available to you and the process through which to collect them. An attorney steps in on your behalf and handles the stress of your day-to-day negotiations, and works to maximize the outcome of pretrial negotiations – or the outcome realized through court action.

Connect With a Local California Employment Attorney to Discuss Your Benefits

If your employer denied your ability to take paid sick leave despite meeting the eligibility requirements, you might be entitled to legal relief. Connecting with an employment attorney can help you explore your options, and if you have a case, collect the most compensation possible on your behalf.

Are You an Employee or Independent Contractor?

November 22, 2021 by Haeggquist & Eck

In the modern world, you may not know whether you are an employee or an independent contractor, as this is a complex legal test. However, there are many distinct differences between an independent contractor and an employee – regarding both worker and company obligations.

If your employer incorrectly classified you as an independent contractor, you may have missed out on the benefits that employees might receive, such as healthcare coverage, retirement benefits, wage and hour protections, anti-discrimination protections, and the potential to collect unemployment or workers’ compensation.

Below, we’ll explore the difference between an employee and an independent contractor and the factors that you should analyze. Additionally, we’ll consider what compensation you might deserve if a misclassification as an independent contractor took place, when in fact, the character of your work was in line with that of an employee.

Reach out to a local employment attorney to discuss the options available to you and to maximize any compensation that you might be entitled to.

The Payment Structure Influences Contractor or Employee Status

Generally, employees receive payment as an hourly rate or a salary, while an independent contractor receives a project-based rate. For example, a company needs a 100-page report written about the options available for the competitors on the market.

If a person writes that 100-page report over three weeks, on-site at the company’s premises from 9 a.m. to 5 p.m., and receives a set payment rate per hour, they are likely an employee. This is especially true if they continue working for that company after they finish this report on other projects the company needs help with.

An independent contractor would be a person contracted to write the 100-page report for a set rate, on a set deadline, using their own office and computer. The individual would complete the same 100-page report, but on their own schedule within the confines of the deadline. The obligations of the company are very different between the two options, as well as the rights and protection of the employee.

Control and Supervision Determine Employee or Contractor Status

One of the key features of an employee is that of control, in that they are under the control and supervision of the company employing them. While an employee can still be a manager with control over others, if they are accountable to the company during the time they work, they are an employee.

An independent contractor, by contrast, works on their own schedule, using their own equipment, and for a set rate that is not hourly. If a contractor is fast, they make more per hour, if they are slow, they make less. Employees can receive unemployment, healthcare, and other benefits, however, so the lesser freedom can still be worthwhile.

Take, for example, an electrician – an individual whose job is to repair or build electrical systems for buildings. For an electrician to be an employee, they would be under the control and supervision of their employer and would be using the tools of the employer – and perhaps a company truck – and working on jobs the employer set up.

An employee electrician on a job would generally go to jobs that the company set up, for which the electrician receives an hourly rate. An independent contractor would use their own vehicle, their own tools, and line up and schedule their own customers.

The Owner of the Equipment Impacts the Professional Relationship

Ownership over the equipment needed for the job can also determine whether you are an employee or an independent contractor in some situations. Using the electrician example, the employee uses a company’s tools, while the independent contractor uses their own.

Your Employee Status Affects Your Rights Under Employment Laws

Employee status brings many benefits, but one of the most important is that you receive rights and protections under many different employment laws. No laws will apply that require an employer to pay you a certain minimum amount per hour.

If you were to lose your job, you would then not have the potential to collect unemployment, as your earnings would not get reported as employment. If you experience discrimination, you might have little recourse against the company.

When an employer incorrectly classifies you as an independent contractor and you did not receive a set minimum wage, or you experienced discrimination or harassment on the job, you may seek compensation. If your employer incorrectly classified you, you may also seek additional damages for the employee benefits you should have received while working.

Reaching out to an employment attorney can provide you with an opportunity to explore the details of your employment. If you have a viable case, an employment lawyer will file it for you and fight for the maximum compensation possible.

The Issues of Rideshare Drivers

Uber and other rideshare companies have long faced accusations of misclassifying employees as independent contractors. Both legislative and judicial measures in California ruled in 2020 that rideshare drivers and other gig workers should be employees and receive all the benefits that employees do, including a minimum hourly wage.

However, rideshare company lobbyists are incredibly influential, and despite ongoing efforts to classify rideshare drivers as employees, Proposition 22 passed in November 2020. It stated that Uber and Lyft can continue to treat drivers as independent contractors instead of employees, even if drivers would benefit from employee status.

Connect With an Employment Attorney Today

The facts and circumstances of your situation will determine whether you are an independent contractor or employee and what, if any, compensation you deserve for back pay, missed benefits, and more. A local California employment attorney can help you explore your options and maximize compensation in any case you might have.

Call Us 619-342-8000