Welcome To Our San Jose Employment Law Blog

Welcome to the San Jose employment law blog of The Law Offices of Steven M. Fink. The purpose of this blog is provide information relating to employment law issues in California. The blog will cover various employment law topics including employment discrimination, civil rights violations, and wrongful termination, just to name a few.

Please check for information pertaining to your employment and civil rights law questions and concerns. Experienced San Jose employment attorney, Steven Fink, is happy to discuss your inquiries directly by phone or email.

The information and material contained in this website/blog are for general informational purposes only. They do not constitute legal advice and should not be used or relied on as such. Your use of such contents does not create an attorney-client relationship.

Employment Lawyer San Jose: Understanding Wrongful Termination In California

In California, a wrongful termination can be difficult to prove. This is because, without a written employment contract to the contrary, the employer-employee relationship in California is presumed to be “at will.” In essence, an “at will” relationship means that either the employer or the employee can choose to end the relationship at any time and for any reason. However, you can not fire someone based on an illegal reason such as discrimination, retaliation, or refusing to engage in illegal activity for example.

In California an employee may bring a lawsuit claiming wrongful termination if the employee can prove the termination was:

1. In breach of an oral promise of continued employment
2. In breach of a written contract
3. Violating a specific state or federal statute – For example if you are a victim of sexual harassment, discrimination due to sex, race, ethnicity, age, religion, etc.
4. Violating public policy – An example might be termination based on a retaliatory reason

Each case is unique in the circumstances and facts surrounding the wrongful termination. As a result, it’s important that an employee keep copies of all employment agreements, handbooks with company policies, any written performance evaluations, etc. so that an employment attorney can help evaluate your wrongful termination case.

If you think you have been the victim of a wrongful termination contact Steven Fink, employment lawyer San Jose, to review your case.

New Office Opening

Charles M. Mesirow, Steven M. Fink, John Kevin Crowley & Brad C. Brereton are pleased to announce the association of their law firm:  Mesirow Fink Crowley & Brereton.

The new office is located at:

160 W. Santa Clara Street, Suite 1180 San Jose, California 95113-1733
Phone:  408-286-1200

The firm specializes in criminal defense and focuses on employment, personal injury, professional negligence, family legal issues, and general business and civil litigation.

California Wage Withholding

A company can lawfully withhold money from a worker’s pay only: (1) whenever required or empowered to do so by state or federal legislation, or (2) when a deduction is expressly authorized in writing by the employee to handle insurance premiums, benefit plan contributions or other deductions not deemed as a rebate on the individual’s pay, or (3) when a deduction to pay for health, welfare, or pension contributions is expressly sanctioned by a wage or collective bargaining arrangement. Despite the fact that a wage garnishment is an authorized deduction from wages under California labor laws, a company cannot terminate an employee because a garnishment of pay has been threatened or if the person’s pay has been subjected to a garnishment for the satisfaction of one judgment.

The ability of a company to deduct money from an individual’s pay because of a cash shortage, breakage, or loss of equipment is expressly regulated by the Industrial Welfare Commission Orders and limited by judicial holdings. Furthermore, there have been several judicial holdings that considerably restrict a company’s power to take an offset against an employee’s pay.

Some typical wage deductions generally made by employers that usually are unlawful include:

Gratuities. An employer cannot collect, take, or receive any gratuity or part thereof given or left for an employee, or deduct any amount from wages due an employee on account of a gratuity given or left for an employee. However, a restaurant may have a policy allowing for tip pooling/sharing among employees who provide direct table service to customers.

Photographs. If an employer requires a photograph of an applicant or employee, the employer must pay the cost of the photograph.

Bond. If an employer requires a bond of an applicant or employee, the employer must pay the cost of the bond.

Uniforms. If an employer requires that an employee wear a uniform, the employer must pay the cost of the uniform.

Business Expenses. An employee is entitled to be reimbursed by his or her employer for all expenses or losses incurred in the direct consequence of the discharge of the employee’s work duties.

California Employment Retaliation

Pursuant to California state law, It is illegal for an employer to retaliate against any employee who provides information to a law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation or noncompliance with a state or federal statute, rule, or regulation.

An employer cannot discharge, demote, suspend or discipline in any manner an employee who engages in this protected activity.

Further, an employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

An employer may not retaliate against an employee for having exercised his or her rights in any former employment.

I Just Got Fired In California For No Reason: What Are My Employee Rights?

I venture to guess that most people would say, of course, employee manuals provide for all sorts of hearings and progressive discipline and the employer is bound to such “promises”, aren’t they?

The short answer is “no.” Generally speaking, “fairness” has nothing to do with one’s employment. Why? California is an “at-will” state, which is just jargon for saying that, in the vast majority of instances, you can quit anytime you like; and, more importantly, your private, as opposed to government, employer can fire you for, a good reason, no reason, or even what you might perceive as an insane reason, as long as it is not an illegal reason.

Okay, you say, what is an illegal reason? Now you have asked the Golden Question. The answer is not that simple, which is what you would expect a lawyer to say, and which is exactly what I am saying. There are many illegal reasons, some of which include, but are not limited to, racial discrimination, gender discrimination, nationality discrimination, refusing to break the law, time off for jury duty, etc. and on and on.

You then ask: so how do I know if I got fired for an illegal reason? Some suggestions:

  • Get the employer to confess. Good luck with that, it’s probably not going to happen.
  • Visit a psychic or seer or spiritual medium.
  • Hire an employment rights lawyer to piece together all the evidence (usually “indirect” or “circumstantial” evidence) and try to link it to an illegal motive, if, indeed, one exists or existed.

If you chose “hire an employee rights lawyer”, you got it right. You then ask: what is this lawyer going to do for me? Well, she or he will gather the facts, review the law and see if your facts can logically be linked to an illegal reason. Some examples:

  • You reported your employer to OSHA or the Labor Commissioner and within a short time you were fired.
  • Promotions and pay increases are being handed out, but some groups are excluded. The trick is to put together enough evidence for a judge or jury to conclude that you were intentionally fired, in whole or in part, for an illegal reason.
  • You went on jury duty and when you returned, you job wasn’t waiting for you.
  • You were sexually harassed and when you did not respond or when you said that you were going to the authorities, you were let go.

Congratulations, You Did Your Job. You’re Fired

Federal and state governmental employees used to be able to obtain redress if they blew the whistle on wrong-doing under a federal civil rights statute, 42 U.S.C. §1983, which provided for a broad range of damages, attorney fees and costs.

42 U.S.C. §1983, part of the Civil Rights Act of 1871, prohibits the deprivation of any rights guaranteed under the Constitution and laws of the United States by anyone acting under color of state or local law. Because §1983 requires governmental involvement, it rarely applies in actions against private employers.

It used to be true that if a governmental employee exercised his or her right to complain about, let’s say, corruption in his or her department; and that employee was punished for doing so, then one of the tools available to the employee would be a claim for “First Amendment Retaliation.” In other words, the employee could not be punished for exercising his or her right of speech or petition (complain to the government). In 2006, the United States Supreme Court changed all that for the worse and made it open season on whistle blowers–although the majority of the court who authored the opinion denied doing so. In Garcetti v. Ceballos 547 U.S. 410, 126 S.Ct. 1951 (2006) the Supreme Court said that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes; and the Constitution does not insulate their communications from employer discipline.

So all is lost? No. For both state and federal employees there are various state remedies that a governmental employee of a state may use. As to federal employees, I suggest that they have suffered a greater diminution in their remedies than state employees, but not all their remedies.

H1-B Visa Fraud And Abuse

Despite recent upturns in the economy, the U.S. has not significantly increased the number of H1-B visas. Foreign job seekers may find themselves victims of H1-B visa fraud and abuse.

Headhunters and corporations commit H1-B visa fraud when they attempt to fill positions that do not exist. This type of fraud can result in a headhunter, officers of a corporation, or corporation being charged with violations of federal law. Individuals may be subjected to fines and terms of imprisonment. Corporations may face sanctions and fines.

H1-B visa fraud typically involves a foreign job seeker who wants to be considered for a job, get a job, or keep a job. A headhunter or corporation may go so far as to submit fraudulent worker petitions and educational credentials to the U.S. Customs and Immigration Service (USCIS). The foreign job seeker is victimized because the headhunter or corporation charges them a large fee to obtain possible employment.

The job seeker then learns the job does not exist and is not reimbursed their fee. Even if a foreign job seeker is victimized, they may be subject to penalties if they have knowingly participated in fraud or abuse. One way to engage in fraud is to create false documents for submission to the U.S. government.

Foreign job seekers who are recent graduates from American educational institutions are also at risk of losing time, a commodity that may be more valuable to them than money. Foreign job seekers who graduate from American institutions typically have 12 months to find employment on a H1-B visa. If the job that they counted on getting turns out not to exist, they may have to return to their country of origin.

H1-B visa abuse usually involves a foreign job seeker paying for the cost of processing and sponsoring their H1-B visa application. This may take place directly through a salary reduction. It can also occur indirectly through under-the-table payments or bonds. U.S. federal law prohibits employers from charging foreign job seekers for costs related to H1-B visas. Federal law also prohibits employers from paying workers on a H1-B visa a lower wages than U.S. citizens if both groups have similar experience and qualifications.

When a person who is not a U.S. resident is convicted of a crime involving H1-B visa fraud or abuse, they may be required to return to their country of origin. There they may face additional penalties.

California’s At-Will Presumption

Under California law, employment is “at-will.” An individual can be fired at any time, for no reason or for any reason. The only exception to this rule is that the reason must not be illegal. Many types of terminations are illegal. Two examples are terminations that are based on an employee’s race or act of reporting sexual harassment that occurred at the workplace.

The at-will presumption is stated in California Labor Code § 2922. This provision states, in part, “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”

The presumption of at-will employment can be revoked by an agreement between the employer and the employee. Since at-will employment provides no security for either party, an agreement typically offers more security for one or both parties.

A secure employment agreement is a contract. As any contract, an agreement regarding employment must contain an offer and acceptance. The employer-employee relationship is continued until one of the parties violates a condition of the agreement.

A party usually accepts an agreement orally or in writing. This act creates an explicit contract. An employer can modify the agreement by explaining what behavior is allowed and what steps they will take before terminating an employee. They often do this in an employee handbook. If an employer does not abide by the policies of its handbook, an employee may sue for wrongful termination.

California law also recognizes the existence of an implied contract. An implied contract is created when an employee continues to act in a manner in accordance with the conditions for their continued employment. The landmark ruling regarding implied contracts is the 1981 decision in Pugh v. See’s Candies. In that case, a California appellate court held that an agreement could be “implied” by language in employee handbooks. This case involved a termination in which the employer did not follow the policies in its employee handbook.

Since Pugh, employers have worked to create employee handbooks and other literature that set guidelines for employees without eliminating the employer’s privilege to fire an employee at will.

In order to determine if your relationship is more than at-will employment, closely review the agreements and documents that form the basis for your employment contract. If your employer has not followed the course of action that they promised in your agreement, you may have a case for wrongful termination.

How California Labor Laws Apply To Interns

In California, the state’s wage and hour laws apply only to paid interns who are paid an hourly wage. The state’s wage and hour laws do not apply to paid interns who received a fixed stipend. The state’s employment laws regarding civil rights and non-discrimination apply to paid and unpaid interns as they would to employees.

In order to call an unpaid position an “internship,” an employer must offer the position as part of an established course offered by an accredited school. The internship may also be offered through an institution approved by a public agency to offer the worker a license or qualify for a skilled vocation or profession. One example is a medical student working for a set number of hours at an emergency clinic.

For-profit employers must meet stricter criteria than non-profit employers. The federal Department of Labor has a six-factor test for for-profit employers. The rules require employers to offer training that does not benefit the employer but benefits the intern. The training must be similar to that which would be provided in the intern’s educational institution. It should not displace regular employees. This means an intern should not be used to fill the position of a regular employee.

Internships are illegal if they only benefit the employer. A good test to determine whether the internship is a job is to ask if the employer would financially benefit from the intern’s actions. For example, if an intern was asked to engage in telephone sales from which the employer would reap a profit, the intern may be entitled to pay. Also, if an intern was asked to do menial work that did not relate to their degree, such as empty trash cans, they may be entitled to pay.

In certain cases, employers may offer training to employees in which the employees are paid 85% of the state’s minimum wage for their first 160 hours. These employees are not interns, but “learners.” They may be offered training at a low rate only if they have no relevant experience.

Since paid and unpaid interns appear, by law, to generally be classified as employees, they should be covered under worker’s compensation. Interns may not be covered by worker’s compensation if they are a volunteer for a public agency or a private, non-profit organization, and do not receive monies for anything other than meals, transportation, lodging, or reimbursement for incidental expenses