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Claiming Punitive Damages in Discrimination Lawsuits

CLC 510What are punitive damages and when can you claim them? Punitive damages are damages designed to punish an organization or individual for particularly bad behavior and deter them from doing it in the future. Punitive damages are possible to receive in employment discrimination lawsuits. However, these damages require a very high level of proof, including the following requirements.

Punitive Damage Proof Requirements

The first requirement is that the employer acted with oppression, fraud or malice. This must be shown with clear and convincing evidence. Clear and convincing evidence is a higher standard than the typical burden of proof in a civil case. Generally, to prove anything to the court requires a preponderance of the evidence, which means that the weight of the admissible evidence rests on your side; in other words it was more likely than not true. By contrast clear and convincing evidence requires that the admissible evidence shows a high probability that what you accuse occurred.

California Civil Code § 3294 defines more explicitly what oppression, fraud, and malice are. Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Fraud means an intentional lie, misrepresentation, or concealment of an important (“material”) fact that was made in order to deprive the person of their property of legal rights. Malice means acts where the employer intentionally caused injury to the plaintiff or acted despicably with a “willful and conscious disregard of the rights or safety of others.”

Should You Claim Punitive Damages?

In summary, unless the employer intentionally lied about an important fact to deceive the employee, committed some other fraud, or intentionally tried to injure the employee, the employee must show that the act of discrimination was despicable. Despicable means conduct that is so bad that it would be looked down upon and despised by ordinary decent people. Some examples of despicable conduct include conduct that is intended to humiliate an employee and force them to quit. It generally requires more than 1 act. For example in McGee v. Tucoemas Fed. Credit Union (2007) an employee with cancer was able to win punitive damages after the employer refused to give the employee extended leave after cancer treatment surgery, cancelled the employee’s medical insurance, and demoted the employee.

An employee must also prove with clear and convincing evidence that the employer either authorized the discrimination or learned of the discrimination and did nothing to prevent it; effectively ratifying the discrimination.

If you have been discriminated against due to your disability or perceived disability contact California employment law attorney Michelle Baker right away. Schedule your Free Consultation today or call us at (858) 452-0093.

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Organ Donors Eligible for Disability Benefits

Non Compete AgreementsCalifornia disability law allows those who are associated with disabled individuals to receive protection against disability discrimination. In this post, we will use a past case from the California Courts of Appeal to demonstrates this protection. In this case, a man who planned to donate a kidney to his disabled sister won a disability discrimination appeal.

In Rope v. Auto-Chlor System of Washington, Inc. a recently hired employee informed his employer, Auto-Chlor, that he intended to donate his kidney to his disabled sister. The employee then attempted to take time off under a new law associated with such cases, known as the Michelle Maykin Memorial Donation Protection Act (DPA). The employee’s manager did not respond to his request to take leave, so the employee complained to management. However, just two days before the law took official effect, Auto-Chlor terminated the employee for allegedly “poor performance.”

The Employee’s Claim

The employee then sued Auto-Chlor for several violations including associational disability discrimination, retaliation for a protected activity, violation of the DPA, and wrongful termination in violation of public policy. The trial court dismissed the employee’s claims but the court of appeals reversed the decision, allowing the associational disability discrimination and wrongful termination claims to proceed.

California Court of Appeal’s Decision

The California Court of Appeals decided that the employee had provided enough evidence to show that the employer had discriminated against him. The discrimination was determined to be based on his relationship to his disabled sister and the fact that the employee would soon become disabled himself after the kidney donation surgery was complete. These facts could have supported a claim for wrongful termination and associational discrimination.

What Is Associational Discrimination?

Associational discrimination claims are a powerful tool to fight discrimination in the workplace. Such claims cover situations in which the employer takes adverse action (such as termination or harassment) against the employee for a disability that an employee’s close family member or spouse has. It also covers claims as the one in Rope discussed above, where the employer fears incurring expenses due to the employee’s association with a disabled person. It is possible that an employer may fear that due to the relationship with the disabled family member, the employee will have to take time off to care for them, or possibly raise the costs of the employer-sponsored medical benefits plan.

Keep in mind that the employer here seemed to be trying to illegally discriminate against the employee before the new law that would have protected him took effect. Today, this would be much more difficult as the DPA is now in full effect and protects employees by allowing them to take 30 days off in order to donate organs.

If you have been the victim of discrimination contact an experienced attorney right away. Call attorney Michelle Baker at (858) 452-0093 or submit your information online for a Free Consultation.

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The Basics: Resolving a Lawsuit

If you are considering bringing a case against your employer, you may be envisioning a long and unpredictable battle in the courtroom. However, there are several ways that your disability discrimination or wrongful termination lawsuit may be settled, and not all lawsuits necessitate a formal courtroom trial.

When your employer discriminates against you and you decide to take action, the employer is subjected to major financial loss far beyond that any rational organization would care to lose. The cost to defend a disability discrimination or other wrongful termination lawsuit is astonishingly high. For example, defense attorneys in California may cost employers $450 per hour or more if the employer does not have the proper insurance. For these reasons it is often in the best interests of the employer to settle a pending claim without an expensive and potentially lengthy trial. That is not to say that every lawsuit will be settled out of court without trial, but the vast majority of non-frivolous lawsuits are. There are three primary ways to solve a discrimination lawsuit: negotiation, mediation, or arbitration.

Negotiation

Negotiation is a tactic that both sides will employ to get the case settled. There are many different styles and strategies of negotiation. Negotiation is often initiated with a demand letter, which may propose a formal negotiation meeting. If formal negotiations break down, negotiation can continue to play a key role in mediation.

Mediation

Mediation is when the employer and employee meet and discuss the merits of their positions with a neutral 3rd party, a mediatory. The mediator will question the parties and attempt to get the parties to rethink their approaches and come to a final mutually agreeable solution. This process is informal, and generally non-binding, unless the parties agree to write out a settlement agreement during the mediation.

Arbitration

Arbitration is similar to mediation but is much more like a trial, although the arbitration rules are less formal than traditional court hearings. Arbitration may be the first resort for many employment cases because many large employers require their employees to sign arbitration agreements that require the employees to forgo suing the employer in court, leaving arbitration as the only resolution process.

There are many legitimate reasons why arbitration is the least favored dispute resolution system for employees.First, the employer’s arbitration agreement may require that the arbitrator be chosen from a specific panel of arbitrators. Although the arbitrators will not have any interest in the employer in particular, the employer may be a repeat player in arbitration so the arbitrator may slightly favor the employer so that the employer continues using arbitrators from the selected panel. Although most large arbitration organizations can avoid this problem, smaller arbitration panels are more easily susceptible to this bias. Second, arbitration may not allow the employee the benefits of having full discovery, which would allow the employee to obtain evidence that he or she might not otherwise ever get to see. Finally, arbitration generally takes away the right to a jury trial.

To learn more about lawsuit or settlement options for your disability discrimination or wrongful termination lawsuit, contact California employment attorney Michelle Baker today. Schedule your free consultation online or call us directly at (858) 452-0093.

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Pregnant Mothers May be Entitled to More Than 19 Weeks Leave

Pregnancy DiscriminationAn Overview of Pregnancy Leave Law:

Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA) allow women to take disability leave while pregnant and after delivery. However, even with the above-mentioned leave afforded by both acts, some women experience complications or unique situations that keep them from returning to work before the statutorily imposed time frames.

According to the California Court of Appeals, some women may now be entitled to even more pregnancy leave.

Sanchez v. Swissport

In the case of Sanchez v. Swissport, Inc., Cal. Ct. App. Feb. 21, 2013 an employee, Ms. Sanchez, was diagnosed with a high-risk pregnancy that required extended bedrest. She applied for and pregnancy leave and was granted 19 weeks of leave from her employer as required by PDLL. However, Ms. Sanchez was still unable to return to work after the leave period expired and still had 3 months to go before she could return to work. As a result, her employer terminated her position. Ms. Sanchez then filed a lawsuit based on gender discrimination, citing the employer’s failure to engage in the interactive process to determine whether she could be provided with reasonable accommodations.

Her employer argued that it was not required to provide Ms. Sanchez with additional leave because she had exhausted all leave that was required by PDLL and CFRA. However, the trial court disagreed. The employer appealed and the California Court of Appeals upheld the decision that the employer was wrong.

The Role of FEHA and CFRA

The Court ruled that simply providing 4 months of leave under PDLL does not entitle the employer to avoid the separate requirements of the Fair Employment and Housing Act (FEHA), in which an employer must provide reasonable accommodations to employees with disabilities. Ms. Sanchez argued that she would have been able to return to work shortly after delivery and that it would not have been an undue hardship on her employer. The court agreed that this in theory could have been a reasonable accommodation.

Although the court did not address the issue of CFRA, it is worth mentioning that after giving birth an employee is entitled to up to 12 weeks of leave under the CFRA in order to care for a new child.

If your employer or former employer has taken action against you or terminated you after taking pregnancy disability leave, you may be entitled to a lawsuit to recover your wages and other damages. To learn more contact the experienced California Employment Law attorneys of Baker Law Group, LLP.  Schedule a free consultation by calling (858) 452-0093 today.

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Ninth Circuit Says No Cause Termination Can Be Wrongful Termination

The Ninth Circuit recently released an opinion that upholds the burden of proof that an employer must claim in retaliatory discharge lawsuits. In Westendorf v. West Coast Contractors (9th Cir. 2013) an employee alleged that her male employee and supervisor made sexist remarks towards her. The remarks allegedly included suggestions that the employee wear a French maid’s uniform; and also involved obscene comments about tampons, women’s breasts and orgasms.

The employee made a formal complaint to her company’s president. The president allegedly reprimanded the supervisor but apparently did not seem to take the allegations seriously. The employee then alleged that the supervisor began making strange demands of her and harshly criticizing her for not following them. She complained a second time to the company president, who she says exclaimed that he was tired of listening to her and thought it was ”would be best if she got her personal items and left.” At which point she was escorted off the building. The company president alleges she had quit, but the employee maintained that she was wrongfully discharged for reporting sexual harassment.

Unfair Retaliation

The employee sued the company alleging it had created a hostile work environment and that it retaliated against her for speaking out about it. The district court dismissed the employee’s case on the grounds that she had been unable to prove either claim in the complaint. However, on appeal the Ninth Circuit found that the retaliation claim should not have been dismissed.

The Ninth Circuit held that because the company failed to provide any explanation for the alleged firing except that the employee quit, it could not get the case dismissed. The court highlighted that even if the company defended itself by saying that they fired the employee because of the employee’s failure to follow the strange directions that her supervisor gave her, that the reasoning would be pretextual because the employee had no record of insubordination before she complained about the harassment.

An Important Precedent

This case sets helpful precedent for employees in discrimination and harassment retaliation cases because it shows that when an employer fails to provide a reason for a termination or provides a frivolous reason, the employer cannot get the case dismissed early.

Wrongful termination because of sexual harassment and discrimination is illegal. To learn more about how to exercise your legal rights, contact the experienced California Employment Law Attorneys of Baker Law Group, LLP. Call (858) 452-0093 to schedule your free consultation.

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Wrongful Termination Claims: Sparks v. Vista Del Mar

Employers often try to limit employee’s abilities to sue them in court by requiring that employment disputes be resolved through arbitration. Arbitration is a less expensive and less formal method of dispute resolution than the courts. However, arbitration often favors the interests of the employer more than the employee. Because employees do not always benefit as much as employers in arbitration California courts are reluctant to uphold agreements to arbitrate where the employee is only put on notice via an employee handbook. For example, the California Court of Appeals recently held that a policy handbook generally cannot create a binding agreement to arbitrate all employment disputes.

In Sparks v. Vista Del Mar Child and Family Services an employee, Perry Sparks, was hired as a controller, but was fired. Mr. Sparks claims that the reasons he was given for the termination were actually not true, they were merely pretextual. Mr. Sparks alleged that he was really fired because he had filed a complaint against the company for a violation of wage and hour law. Mr. Sparks filed a lawsuit for wrongful termination, unfair business practices, and intentional infliction of emotional distress.

The employer then tried to pause the claims in the court and have them moved to arbitration on the basis that Mr. Sparks had agreed to arbitrate all disputes against the employer. The employer argued that Mr. Sparks had acknowledged that he received the arbitration clause by signing a statement acknowledging that he received an employer handbook that contained the arbitration agreement.

The court disagreed with the employer. First, the court pointed out that the handbook contained a statement that the handbook was not meant to be a contract, so the arbitration agreement within it could not be binding according to the will of the employer. Further, even if the employer had intended the arbitration clause to be binding, the court held that the agreement could not hold up in court because it would take away an employees rights under federal and state law, which is not allowable without providing extra consideration such the right to demand documents from the employer in arbitration.

This case is very helpful for employees because it sets a very high standard as to when an employer can force its employees to arbitrate rather than sue in court. Employees generally lack the ability to bargain with employers to protect their rights any more than the law allows, so employers exploit this by trying to get the employee to voluntarily give up as many rights as they can. Employers think they can get away with this because there will always be someone willing to waive their rights in order to get a job. This case means that employers may not take away an employee’s right to discovery in a wage or discrimination dispute.

Employers May Not Fire Employees Who Assert Their Rights

California employers are not allowed to take any negative action against an employee who has asserted their rights to receive unpaid wages or unpaid overtime. If you have been denied wages or have been fired or demoted for making a complaint against your employer contact the experienced California employment law attorneys of Baker Law Group, LLP. Call us today for a free consultation.