Consumer bureau may have final say on arbitration clauses
I provide this link to an interesting recent article in the LA Times regarding the prospects of the legislative repeal (of sorts) of the recent AT&T v. Concepcion decision, which allows corporations to (without much restriction) limit consumer's rights to free access to the court system by forcing people to "arbitrate" their claims. These clauses are becoming all too common in the employment context. Many times, when you are hired, you don't realize in the "fine print" of your employee handbook is an agreement to arbitrate any employment dispute. This prevents the employee from the right to a trial by a jury.
Wednesday, May 2, 2012
Friday, April 27, 2012
California State Statutes Prohibiting Being Fired for Specified Reasons
As a California employment law attorney and lawyer in Los Angeles, I am often asked about the term "at will" employment. What this means is that, normally, every employee in California (unless they have a contract of employment for a specified term and under specified conditions) can be terminated "at will" for any reason that is not illegal. This begs the question as to what are the illegal reasons for termination that would overcome this "at will" argument and allow for a wrongful termination claim. These are specified in the following statutes:
Prohibition against discharging or taking disciplinary action against employee because of judicially ordered wage assignment for child, spousal, or family support. Fam. Code § 5290
Discharge or discipline because of wage assignment for health insurance coverage of supported child. Fam. Code § 3769
Discharge or other discrimination against employee based on absence from work caused by required attendance in school class from which employee's child was suspended. Educ. Code § 48900.1; Lab. Code § 230.7
Suspension or termination of employee because of absence to serve as election officer on election day. Elec. Code § 12312
Discrimination against employee for membership in, or performance of service as part of, Civil Air Patrol. Gov. Code § Gov. Code § 1502.
Retaliatory discharge or discrimination based on disclosure of information or other cooperation with prosecution of violation of laws prohibiting filing of false claims against government entity. Gov. Code § 12653
Discrimination, including termination, based on ancestry, color, marital status, medical condition, national origin, physical and mental disability, race, religion, sex, age, sexual orientation. Gov. Code § 12940(a)
Discrimination, including termination, against certain health-care workers because of compliance with report requirements under Penal Code § 11161.8regarding abuse or neglect of patient. Gov. Code § 12940(g); Penal Code § 11161.8
Age discrimination through use of salary as criterion for terminating employees, if use of that criterion adversely impacts older workers. Gov. Code § 12941
Employer's duty to provide leave and to reasonably accommodate female employee disabled by pregnancy, childbirth, or related medical condition. Gov. Code § 12945
Remedies for violations of Fair Employment and Housing Act (Gov. Code §§ 12900-12996). Gov. Code § 12965(b)
Penalizing health-care workers because of refusal to participate in performance of abortions. Health & Safety Code § 123420(a)
Discrimination against health-care employee with staff privileges because of participation in performance of abortions elsewhere. Health & Safety Code § 25955(a) (operative until January 1, 1991)
Discharge or other discrimination based on employee's filing of bona fide complaint or institution of proceeding with Labor Commissioner, or testifying in Labor Commission proceeding. Lab. Code §§ 98.6 (prohibition), 98.7 (remedies)
Discrimination, including discharge or threats of discharge, regarding worker's compensation claim. Lab. Code § 132a
Prohibition of discrimination or other retaliation against employee based on absence from work to serve as juror, to attend court as witness, or to attend court in attempt to obtain relief from domestic violence or sexual assault. Lab. Code § 230
Prohibition, if employer has at least 25 employees, of discharge or discrimination against employee who is victim of domestic violence or sexual assault for taking time off from work to seek medical attention and other services, or to take actions to increase safety from future domestic violence or sexual assault. Lab. Code § 230.1(a)
Prohibition against discharge of or discrimination against employee for taking time off from work to attend judicial proceedings related to certain felonies perpetrated against employee, member of employee's immediate family, employee's domestic partner, or domestic partner's child. Lab. Code § 230.2
Prohibition against discharge of or discrimination against employee for taking time off to perform emergency duty as volunteer firefighter, reserve peace officer, or emergency rescue personnel. Lab. Code § 230.3
Prohibition against discharging or discriminating against employee for taking time off, as specified, to visit child's school or day-care center. Lab. Code § 230.8
Discharge, discipline, or other discrimination based on employee's disclosure of amount of compensation. Lab. Code § 232
Prohibition against requiring polygraph tests as condition of employment or continued employment. Lab. Code § 432.2(a)
Use of records regarding arrest or detention not resulting in conviction to determine any condition of employment, including termination. Lab. Code § 432.7(a)
Coercing employee or applicant to patronize employer or any other person, in purchase of anything of value, or to pay fee in connection with application for employment. Lab. Code §§ 450 (prohibition), 451 (misdemeanor offense)
Prohibition against termination because of disclosure of illiteracy. Lab. Code § 1044
Making or enforcing policy that prevents employees from engaging in political activities or from running for public office, or that controls employees' political activities. Lab. Code § 1101
Attempting to coerce or influence employees' political activities by means of threat of discharge. Lab. Code § 1102
Preventing disclosure, or retaliating against employee for disclosing, information to government or law enforcement agency, when information concerns employer's violation of law. Lab. Code § 1102.5
Notice requirements for mass layoffs, relocations, and terminations. Lab. Code § 1400 et seq.
Termination because of employee's refusal to enter into agreement assigning rights to invention as condition of employment or continued employment, in violation of Lab. Code § 2870. Lab. Code § 2871
Events terminating employment. Lab. Code § 2920
At will employment; definition of specified employment term. Lab. Code § 2922
Termination of employment for specified term based on willful breach of duty, habitual neglect, or continued incapacity of employee. Lab. Code § 2924
At will employee is entitled to compensation for service rendered up to time of dismissal. Lab. Code § 2926
Termination based on threatened garnishment of wages or actual garnishment for any one indebtedness. Lab. Code § 2929(b)
Employer who disciplines or fires employee based on report of shopping investigator (person employed to shop in order to test integrity of store employees) required to provide employee with copy of report prior to discipline or termination. Lab. Code § 2930(a)
Discrimination against employee who makes complaints about workplace safety, who participates in an occupational safety and health committee established under Lab. Code § 6401.7, or who institutes or testifies in proceedings under California Occupational Safety and Health Act (Lab. Code §§ 6300-6711). Lab. Code § 6310
Termination or layoff based on refusal to work in conditions that violate provisions of California Occupational Safety and Health Act (Lab. Code §§ 6300-6711). Lab. Code § 6311
Employee claiming violation of Lab. Code § 6310 or 6311 (prohibiting discrimination based on assertion of rights under Cal OSHA) is entitled to file complaint with California Labor Commissioner, pursuant to procedures set out in Lab. Code § 98.7. Lab. Code § 6312
Discrimination against military officers because of performance of any ordered military duty or training. Mil. & Vet. Code § 394
Discharge or other discrimination based on person's having sought information concerning legal rights from Employment Development Department, cooperated with a departmental investigation, or testified in any proceedingbrought pursuant to Unemployment Insurance Code or Labor Code. Unemp. Ins. Code § 1237
Specific performance and injunctive relief. Civ. Code §§ 3390, 3423
Misrepresentation by former employer to prevent former employee from obtaining employment as unlawful. Lab. Code § 1050
Liability for knowingly causing, suffering, or permitting agent, superintendent, manager, or employee to violate Lab. Code § 1050, or failing to take all reasonable steps to prevent the violation. Lab. Code § 1052
Truthful statements about employee's discharge or reason for leaving service not prohibited by Lab. Code §§ 1050 and 1052. Lab. Code § 1053
Liability for treble damages resulting from misrepresentation in violation of Lab. Code § 1050. Lab. Code § 1054
Obligation to render personal service not specifically enforceable. Civ. Code § 3390(1)
Injunction not to be granted to prevent breach of contract except in case of certain contracts to render personal service. Civ. Code § 3423
Contract to render personal service not enforceable against employee beyond seven years after commencement of service. Lab. Code § 2855(a)
Enforceability of contract to render personal service in production of phonorecords; action for damages for breach of contract. Lab. Code § 2855(b)
This is not necessarily ALL of the specified wrongful termination reasons but, it does provide a fairly comprehensive list of reasons that are strictly prohibited under California state law for terminating an employee.
In reality, it is always best to consult with a knowledgeable attorney whenever you are terminated for what you feel are "wrongful reasons". It may be that you have a claim or that the attorney can at least assist you in trying to negotiate some type of fair severance package. For a free consultation with our Beverly Hills employment attorneys and lawyers for any case arising in any part of California including Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Francisco or the bay area, feel free to call for a free consultation @ 310-623-3771 or toll free: (866)229-0101.
This blog provided as a public service by: Glotzer & Sweat, LLP, 280 S. Beverly Drive, Suite 302, Beverly Hills, CA 90212.
Or feel free to visit us on the web: http://www.victimslawyer.com/
Prohibition against discharging or taking disciplinary action against employee because of judicially ordered wage assignment for child, spousal, or family support. Fam. Code § 5290
Discharge or discipline because of wage assignment for health insurance coverage of supported child. Fam. Code § 3769
Discharge or other discrimination against employee based on absence from work caused by required attendance in school class from which employee's child was suspended. Educ. Code § 48900.1; Lab. Code § 230.7
Suspension or termination of employee because of absence to serve as election officer on election day. Elec. Code § 12312
Discrimination against employee for membership in, or performance of service as part of, Civil Air Patrol. Gov. Code § Gov. Code § 1502.
Retaliatory discharge or discrimination based on disclosure of information or other cooperation with prosecution of violation of laws prohibiting filing of false claims against government entity. Gov. Code § 12653
Discrimination, including termination, based on ancestry, color, marital status, medical condition, national origin, physical and mental disability, race, religion, sex, age, sexual orientation. Gov. Code § 12940(a)
Discrimination, including termination, against certain health-care workers because of compliance with report requirements under Penal Code § 11161.8regarding abuse or neglect of patient. Gov. Code § 12940(g); Penal Code § 11161.8
Age discrimination through use of salary as criterion for terminating employees, if use of that criterion adversely impacts older workers. Gov. Code § 12941
Employer's duty to provide leave and to reasonably accommodate female employee disabled by pregnancy, childbirth, or related medical condition. Gov. Code § 12945
Remedies for violations of Fair Employment and Housing Act (Gov. Code §§ 12900-12996). Gov. Code § 12965(b)
Penalizing health-care workers because of refusal to participate in performance of abortions. Health & Safety Code § 123420(a)
Discrimination against health-care employee with staff privileges because of participation in performance of abortions elsewhere. Health & Safety Code § 25955(a) (operative until January 1, 1991)
Discharge or other discrimination based on employee's filing of bona fide complaint or institution of proceeding with Labor Commissioner, or testifying in Labor Commission proceeding. Lab. Code §§ 98.6 (prohibition), 98.7 (remedies)
Discrimination, including discharge or threats of discharge, regarding worker's compensation claim. Lab. Code § 132a
Prohibition of discrimination or other retaliation against employee based on absence from work to serve as juror, to attend court as witness, or to attend court in attempt to obtain relief from domestic violence or sexual assault. Lab. Code § 230
Prohibition, if employer has at least 25 employees, of discharge or discrimination against employee who is victim of domestic violence or sexual assault for taking time off from work to seek medical attention and other services, or to take actions to increase safety from future domestic violence or sexual assault. Lab. Code § 230.1(a)
Prohibition against discharge of or discrimination against employee for taking time off from work to attend judicial proceedings related to certain felonies perpetrated against employee, member of employee's immediate family, employee's domestic partner, or domestic partner's child. Lab. Code § 230.2
Prohibition against discharge of or discrimination against employee for taking time off to perform emergency duty as volunteer firefighter, reserve peace officer, or emergency rescue personnel. Lab. Code § 230.3
Prohibition against discharging or discriminating against employee for taking time off, as specified, to visit child's school or day-care center. Lab. Code § 230.8
Discharge, discipline, or other discrimination based on employee's disclosure of amount of compensation. Lab. Code § 232
Prohibition against requiring polygraph tests as condition of employment or continued employment. Lab. Code § 432.2(a)
Use of records regarding arrest or detention not resulting in conviction to determine any condition of employment, including termination. Lab. Code § 432.7(a)
Coercing employee or applicant to patronize employer or any other person, in purchase of anything of value, or to pay fee in connection with application for employment. Lab. Code §§ 450 (prohibition), 451 (misdemeanor offense)
Prohibition against termination because of disclosure of illiteracy. Lab. Code § 1044
Making or enforcing policy that prevents employees from engaging in political activities or from running for public office, or that controls employees' political activities. Lab. Code § 1101
Attempting to coerce or influence employees' political activities by means of threat of discharge. Lab. Code § 1102
Preventing disclosure, or retaliating against employee for disclosing, information to government or law enforcement agency, when information concerns employer's violation of law. Lab. Code § 1102.5
Notice requirements for mass layoffs, relocations, and terminations. Lab. Code § 1400 et seq.
Termination because of employee's refusal to enter into agreement assigning rights to invention as condition of employment or continued employment, in violation of Lab. Code § 2870. Lab. Code § 2871
Events terminating employment. Lab. Code § 2920
At will employment; definition of specified employment term. Lab. Code § 2922
Termination of employment for specified term based on willful breach of duty, habitual neglect, or continued incapacity of employee. Lab. Code § 2924
At will employee is entitled to compensation for service rendered up to time of dismissal. Lab. Code § 2926
Termination based on threatened garnishment of wages or actual garnishment for any one indebtedness. Lab. Code § 2929(b)
Employer who disciplines or fires employee based on report of shopping investigator (person employed to shop in order to test integrity of store employees) required to provide employee with copy of report prior to discipline or termination. Lab. Code § 2930(a)
Discrimination against employee who makes complaints about workplace safety, who participates in an occupational safety and health committee established under Lab. Code § 6401.7, or who institutes or testifies in proceedings under California Occupational Safety and Health Act (Lab. Code §§ 6300-6711). Lab. Code § 6310
Termination or layoff based on refusal to work in conditions that violate provisions of California Occupational Safety and Health Act (Lab. Code §§ 6300-6711). Lab. Code § 6311
Employee claiming violation of Lab. Code § 6310 or 6311 (prohibiting discrimination based on assertion of rights under Cal OSHA) is entitled to file complaint with California Labor Commissioner, pursuant to procedures set out in Lab. Code § 98.7. Lab. Code § 6312
Discrimination against military officers because of performance of any ordered military duty or training. Mil. & Vet. Code § 394
Discharge or other discrimination based on person's having sought information concerning legal rights from Employment Development Department, cooperated with a departmental investigation, or testified in any proceedingbrought pursuant to Unemployment Insurance Code or Labor Code. Unemp. Ins. Code § 1237
Specific performance and injunctive relief. Civ. Code §§ 3390, 3423
Misrepresentation by former employer to prevent former employee from obtaining employment as unlawful. Lab. Code § 1050
Liability for knowingly causing, suffering, or permitting agent, superintendent, manager, or employee to violate Lab. Code § 1050, or failing to take all reasonable steps to prevent the violation. Lab. Code § 1052
Truthful statements about employee's discharge or reason for leaving service not prohibited by Lab. Code §§ 1050 and 1052. Lab. Code § 1053
Liability for treble damages resulting from misrepresentation in violation of Lab. Code § 1050. Lab. Code § 1054
Obligation to render personal service not specifically enforceable. Civ. Code § 3390(1)
Injunction not to be granted to prevent breach of contract except in case of certain contracts to render personal service. Civ. Code § 3423
Contract to render personal service not enforceable against employee beyond seven years after commencement of service. Lab. Code § 2855(a)
Enforceability of contract to render personal service in production of phonorecords; action for damages for breach of contract. Lab. Code § 2855(b)
In reality, it is always best to consult with a knowledgeable attorney whenever you are terminated for what you feel are "wrongful reasons". It may be that you have a claim or that the attorney can at least assist you in trying to negotiate some type of fair severance package. For a free consultation with our Beverly Hills employment attorneys and lawyers for any case arising in any part of California including Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Francisco or the bay area, feel free to call for a free consultation @ 310-623-3771 or toll free: (866)229-0101.
This blog provided as a public service by: Glotzer & Sweat, LLP, 280 S. Beverly Drive, Suite 302, Beverly Hills, CA 90212.
Or feel free to visit us on the web: http://www.victimslawyer.com/
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