"You may delay, but time will not." —Benjamin Franklin
When an employee raises claims against his or her current or former employer, it is important for you to understand that there is no one-size-fits-all solution; every matter must be evaluated independently because there are a number of variables that are unique to each and every matter, even if it involves the same employer. As soon as a Company is on notice, directly or indirectly (even if heard through the rumor mill) of anticipated, threatened or actual notice of legal action of any kind (i.e., filing a lawsuit with any administrative agency, such as the EEOC, DFEH, EDD, DOL, DLSE, etc., state or federal Courts, arbitration, mediation, or governmental audits, subpoena of records, etc.), several legal obligations are triggered for a California employer, that require employment counsel's direction and guidance,with all such communications protected from disclosure by the attorney-client privilege.
"Our Experienced Employment Litigators Work Quickly to Fully Evaluate Known Facts, Policies, and Applicable Laws, Recommending, Implementing and Reassessing Strategic Responses to Best Protect Your Company from Start to Finish." —Lisa Sherman
The moment you contact Sherman Law Corporation, our experienced litigators immediately guide you on compliance with your legal obligations, which include, preservation of potentially relevant information related to the subject matter, issuing legal holds, collecting and reviewing documents and electronically stored information, and investigating all known facts, policies and applicable laws to assess potential liability and exposure to the Company and individuals involved. An up-front factual investigation, which is often required by law, includes interviewing key personnel, reviewing relevant policies, personnel files, notes, paper and electronic information related in any manner to the allegations that will allow us to recommend, and for you to make, an informed decision on how to proceed initially.
Because our initial assessment lacks all potentially relevant evidence (i.e. testimony, documents or communications from other parties, and potential witnesses), which are revealed throughout the course of a legal action, along with numerous other unforeseen variables (such as, conduct of opposing counsel, the forum in which the matter will be adjudicated, judge assigned to the case, court rulings, unknown testimonial or documentary evidence, etc.), we regularly reassess and update our assessment and corresponding strategies. Not only are your communications with an attorney from Sherman Law Corporation protected from disclosure by the attorney-client privilege, our workplace investigations are also privileged and confidential (unless the Company wishes to rely upon it and later waives the privilege to support the Company's defenses).
Representation Pre-Litigation and in Legal Actions.
Our legal practice involves extensive representation of clients who are predominantly employers and/or high-level executives in threatened or actual litigation. Sherman Law Corporation has litigated individual and class action employment-related claims and represented clients in audits involving all forums, including, before administrative agencies, in California's state and federal courts, and in alternative dispute resolution, including, private arbitration and mediation. We have extensive experience responding to complaints of discrimination, harassment and retaliation, as well as, the gamut of wage and hour claims filed with agencies such as, the California Department of Fair Employment and Housing (DFEH), Division of Labor Standards and Enforcement (DLSE), Employment Development Department (EDD) and the federal Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC).
The employment-related claims that we regularly encounter include:
- California Laws Governing the Employment Relationship. The vast majority of employment-related claims are brought under California’s laws because they are far more expansive than federal law or those of any other state. The most prevalent claims include violations of the following:
- Violation of California’s Laws against Discrimination, Harassment, Retaliation, and Failure to Prevent such Claims. The Fair Employment and Housing Act (FEHA) prohibits actual or perceived discrimination, harassment, retaliation, and/or failure to prevent these claims based on a broad range of protected characteristics which include race, color, creed, religion, sex, gender, gender identity, gender expression, marital status, pregnancy, transgender, transsexualism, sexual orientation, age (40 or over), national origin, citizenship, primary language, immigration status, military or veteran status, physical handicap, disability, medical condition, genetic characteristic, ancestry, and requesting an accommodation for religious or disabilities. This list continues to expand each year. Amendments to FEHA in 2016 increased employer's obligations further.
- Violation of California’s Leave Laws. The California Family Rights Act (CFRA), which is part of the FEHA, prohibits discrimination, harassment, retaliation, and interference against an individual who exercises his or her right to family and medical leave under CFRA. California laws also require employers, sometimes coverage is based on number of employees, to provide additional protection for leaves of absence that include: workers’ compensation, disability, pregnancy, sick, military, civic duty, election, volunteer firefighter, parental leave for children in school, literacy, religious, civic air patrol, and organ and bone marrow donors. This list also continues to expand statewide. Also, individual cities and counties have also passed ordinances, for example, governing paid sick leave in approximately seven different regions.
- Violations of California Laws Recognizing Important Public Policies. The California Labor Code, for example, prohibits discrimination in employment based on public policy grounds, such as lawful off-duty conduct, gender-based wage discrimination, filing a claim with the California Labor Commissioner, filing a complaint, or exercising rights under California’s Occupational Safety and Health Act (Cal-OSHA); retaliation against an employee who files for or receives workers’ compensation benefits; policies that prohibit employees from disclosing wages, participating in politics, or that an employee reasonably believes violate federal, state, or local laws or regulations; violation of California's wage and hour laws and Wage Orders; immigration-related discrimination, and retaliation for opposing unlawful conduct or refusing to participate, to name just a few.
- Violations of California's Wage and Hour Laws. While employers must comply with both federal and state wage and hour laws, the vast majority of claims involve violations of California's wage and hour laws because they are typically more employer-restrictive. Wage and hour claims typically involve misclassification of independent contractors and exempt salaried employees that if true, automatically violate numerous other wage and hour laws, including, without limitation, failure to pay all compensation due and owing timely, failure to comply with record-keeping obligations, failure to pay overtime, violation of meal and rest break laws, and inaccurate wage statements/violation of recordkeeping obligations. Any violation of California's Labor Code that affects aggrieved employees during a one year period are also subject to penalties under the Private Attorney General's Act (PAGA). Under PAGA, an aggrieved employee can stand in the shoes of the private attorney general and recover his/her attorneys' fees for any violation of California's Labor Code, not just wage and hour violations. Individual and class action wage and hour claims continue to soar.
- Violations of California’s Trade Secret Act, Unfair Competition, among Other Claims. California’s Civil Code, which adopts the federal Uniform Trade Secrets Act (UTSA) in defining misappropriation of trade secrets, California's Business and Professions Code Section 17200 et. seq. for unlawful, unfair, or fraudulent acts or business practices, and several other federal and state-related claims are typically raised when a current or former employee uses non-public, proprietary Company information that damages his/her former employer. Typically, the claimed damages are lost revenues when former clients defect. The ease with which employees access, transmit, and store Company information on mobile devices, in personal email accounts, personal computers, clouds, portable drives, servers, etc. have made it easy to track digital footprints. However, absent agreements, policies, and practices evidencing that the employer took reasonable measures to protect unauthorized access and use of the alleged proprietary information and properly preserved the digital footprints, the former employer is often fighting an uphill battle. Unfair competition lawsuits are among the costliest to Company, far beyond the costs of litigation.
- Common Law Claims. Common law claims arise from California court decisions. These include, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of employment obligations, fraud, invasion of privacy, intentional and negligent infliction of emotional distress, assault, battery, false imprisonment, defamation; violation of privacy rights, interference with contractual relations, interference with prospective economic advantage, negligent hiring, supervision, and/or retention, constructive discharge, and wrongful conduct in violation of fundamental public policies underlying Federal or State statutes or Constitution.
- Federal Laws governing the Employment Relationship. The federal laws include: The Patient Protection and Affordable Care Act (ACA), Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Americans with Disability Act of 1990 (ADA), The Computer Fraud and Abuse Act (CFAA), The Consolidated Omnibus Budget Reconciliation Act (COBRA), The Defend Trade Secrets Act of 2016 (DTSA), The Digital Millennium Copyright Act, The Economic Espionage Act of 1996 (EEA), The Electronic Communications Privacy Act, The Equal Pay Act (EPA), The Electronic Communications Privacy Act of 1986, The Employee Polygraph Protection Act of 1988 (EPPA), The Employee Retirement Income Security Act of 1974 (ERISA), The Equal Pay Act (EPA), The Fair Labor and Standards Act (FLSA), The Family and Medical Leave Act (FMLA), The Fair Credit Reporting Act (FCRA), The Federal Arbitration Act (FAA), The Federal Drug-Free Workplace Act of 1988, The Genetic Information Nondiscrimination Act (GINA), The Health Insurance Portability and Accountability Act of 1996 (HIPAA), The Immigration Reform and Control Act (IRCA), The Federal Occupational Safety and Health Act (Fed-OSHA), The Labor Management Relations Act (LMRA), The National Labor Relations Act (NLRA), The Older Workers Benefit Protection Act (OWBPA), Omnibus Crime Control and Safe Streets Act (Wiretap Act), The Stored Communications Act (SCA), The Uniform Trade Secrets Act (UTSA), The USA PATRIOT Act, The Violence Against Women Act (VAWA), The Worker Adjustment and Retraining Notification Act (WARN). just to name just a few. For the most part, these federal laws are far more restrictive not only as to the types of conduct that are protected, but limit monetary recovery. Nonetheless, California still looks to federal case law in interpreting its own employment laws.
The Benefits of Retaining Our Experienced Employment Litigators.
Anytime we assess or reassess a proposed strategy with our clients, it is important that we give them an unfiltered assessment of the potential risks, benefits, and costs, so that they can make a fully reasoned decision on how they wish to proceed. When our own investigation strongly supports a finding that an employee's claims are frivolous, and/or that the employee has engaged in gross misconduct, such as stealing, clients are usually steadfast in their resolve to launch an aggressive offensive (as they should be), especially when the rest of the workforce is waiting in the wings ready to follow suit if the employer simply pays off the employee. While we cannot predict how a dispute will ultimately be resolved at any given time, we will aggressively defend and pursue all legal remedies for our clients throughout our representation.
We invite you to give us a call today at (213) 341-4417 to discuss actual or threatened legal action involving you and/or your Company.