Vicky Maxwell presented “Public Benefits & Estate Planning for People with Special Needs” at this year’s International Family Conference of Dup15q Alliance in Redondo Beach, CA. Dup15q Alliance is an organization which provides family support and promotes awareness, research and targeted treatments for Chromosome 15q11.2-13.1 Duplication Syndrome. Individuals with this syndrome are at high risk for epilepsy, autism and intellectual disability.
Monty White LLP was among community groups sponsoring celebration of the 40th anniversary of Marin’s Center for Domestic Peace. C4DP provides 24 hour shelter, housing and support to survivors of domestic abuse. On October 21, 2017, over 250 people attended this event which included the presentation of a Peace Award to Marin District Attorney, Ed Berbarian, for his work in fighting domestic abuse. MWLLP’s Barbara Monty is pictured with the D4DP’s executive director Donna Garske and honoree Ed Berbarian. centerfordomesticpeace.org 1.800.799.7233
This event was hosted by Book Passage Bookstore & Cafe in Corte Madera and offered specific career information, employment trends, presentations by women business owners and mentoring, both in the professions and trades. Monty White LLP was one of the sponsors of what will be an annual event.
California employment law is almost infinite. Its multi-faceted nature is indicated by the fact that employment is regulated by more than a dozen federal and state agencies. But most employment problems occur at the beginning and the end of the work relationship between Boss and Worker. This article flags some of the more common issues that arise at those two key points in time.
THE BEGINNING… OF WHAT?
An awful lot of later trouble would be avoided if, at the start of their relationship, Boss and Worker answer the following questions, preferably in writing.
1. What Kind Of Relationship Is This Anyway?
When Boss hires Worker, surprisingly often they fail to ask each other this fundamental question: is Worker an independent contractor or an employee? If Worker is an employee, is he or she an “exempt” employee (one who entitled to premium pay for overtime work) or a “nonexempt” employee? If worker has been sent from one employer to another, or from a temp agency to Boss, is Worker the employee of the sender, the receiver or both?
2. How Long Is This Relationship Going To Last?
Is Worker hired indefinitely or for a specified length of time? Can Boss terminate Worker at will or only for cause? In the absence of an agreement to the contrary, Worker is presumed to be hired at-will.
3. What’s In It For Worker?
Boss is asking for trouble if he/she/it doesn’t state in writing at the outset what and when Worker will be paid. If the compensation to be paid includes commissions, California law requires a written agreement detailing how these commissions will be computed and paid. Any benefits that have economic value (such as paid time off or health plan benefits) should likewise be stated in writing.
THE ENDING: “GOODBYE” OR “SEE YOU IN COURT”?
Litigation between Boss and Worker doesn’t usually occur while Worker is still on the job. The great majority of employment cases begin after Worker’s employment has ended, What can be done to keep the end of the employment relationship from becoming the start of open warfare? At the end point, like at the beginning, a lot of turmoil can be avoided by anticipating potential issues and resolving them before they become problems.
1. If Worker’s Employment Is At Will: “Hey, What’s The Problem?”
It is often assumed that employment at will gives Boss the right to fire Worker for any reason. Not so. Employment at will gives Boss the right to fire Worker for any reason except an illegal one, and many reasons for firing a worker are illegal. For example: firing Worker on the basis of one of the many forms of discrimination that the law has outlawed. At the present time 18(!) forms of discrimination are illegal. It is also illegal for Boss to fire Worker in retaliation for exercising workplace rights or in violation of an employment contract with Worker
As a practical matter, it’s not a good idea for Boss to fire Worker without doing a Risk Assessment. In short, look before you leap. Questions that should be addressed include: What exactly is the reason why Boss fired Worker? What is Worker’s side of the story going to be? What are the chances that Worker will sue? If Worker does sue, are the costs of litigation and the risk of a bad outcome acceptable to Boss?
Even if Boss could fire Worker without incurring potential liability for wrongful termination, it is still open to Worker to assert a multitude of other claims. For·example, Worker may assert claims based on the wage and hour laws, such as claims for overtime pay, missed meal breaks, or missed rest break s.
2. OK, So What’s The Solution?
Rather than firing Worker, most often it is in Boss’s interest to offer Worker a separation agreement. In that agreement, Boss provides Worker with something of value (for example, severance) and in exchange Worker provides Boss with a release of claims. Getting a separation agreement takes Boss longer and costs more than firing Worker, but once the agreement is done Boss knows he or she has obtained as much protection from employee claims as the law allows, For Worker, getting a separation agreement gives him or her the power to leave on more favorable terms, and with more dignity, than she or she would have if he or she was just fired. (For a more detailed discussion of separation agreements, see my blog entitled “Avoiding Wrongful Termination Liability.”
3. What If Worker Just Quits?
The best way for Boss to avoid subsequent claims by an employee who quits is to take two steps. First, make sure that all employees have been properly informed of their employment law rights, many of which are covered in the poster all employers are required to put up. Second, promulgate a policy that not only permits or welcomes employees to report violations of those rights, but requires them to do so. Once such a requirement is in place, any Worker who contemplates asserting employment law claims against Boss will either have to give Boss an opportunity to address them before quitting or have a credible excuse for failing to give Boss such an opportunity.
Andrew Wolfe is Of Counsel to Monty White LLP, and can be reached at email@example.com
Employee terminations are, far and away, the Number One cause of legal lawsuits against employers. In California, where I practice law, it often seems like it’s open season on employers.
Why are there so many wrongful termination lawsuits? As soon as an employee gets fired, whatever loyalty that employee (we’ll call him Joe) once had to his former employer will probably evaporate. Joe will almost always feel that the decision to fire him was unfair. He probably has bills to pay and mouths to feed. Angry, or afraid, or both, he recalls media stories about all the other ex-employees who filed lawsuits against their employers and got big money. He picks up the phone and starts looking for one of those lawyers who take wrongful termination cases on a contingency basis. There’s a good chance his search will be successful.
Once he gets an attorney, Joe probably won’t have much trouble coming up with a viable basis for bringing a wrongful termination lawsuit. Please note that I’ve used the word “viable” rather than the word “valid.” Joe’s claims don’t have to be true, just plausible enough to make it difficult and expensive for his employer to defeat.
What kind of claim can Joe and his attorney assert? Maybe “discrimination”—more than a dozen different forms of discrimination are now illegal, with the result that most employees are in at least one legally protected category. Maybe “retaliation”—if Joe exercised any one of a multitude of his legally protected employee rights shortly before getting fired (if, for example, he filed a workers compensation claim), he might plausibly claim that his employer fired him in retaliation for exercising that right. (The ease with which retaliation claims can be conjured up makes them particularly popular these days.) Maybe “whistle blowing”—if Joe said anything before being fired that could be construed as a contention that his employer was acting illegally, he may claim that he’s being punished for telling truth to power. And these are only some of the many claims that a skilled lawyer can craft in an effort to establish a viable basis for Joe’s wrongful termination lawsuit.
All too often, my first contact with a client is a call from an employer who fired Joe for reasons that looked completely unassailable, who never expected to hear from him again, and who is now shocked to find itself the target of lawsuit in which Joe seeks astronomical sums of money for back pay, future economic losses, emotional distress and punitive damages.
Another familiar type of client is the employer who knows that keeping Joe on the job has damaged team performance and morale, but also knows that firing Joe might result in a lawsuit and will be an unpleasant experience the employer would very much like to avoid. Typically, this employer has been procrastinating about this deteriorating situation for a long time.
Fortunately, there is an alternative to firing an employee who must be let go, one that greatly reduces the risk of liability and greatly reduces the stress on the employer and employee alike. Simply stated, the solution is this: instead of just going ahead and firing Joe, negotiate a separation agreement with him. From the employer’s perspective, the essential feature of the settlement agreements I recommend to many clients, and draft for them, is that Joe releases all of the claims that the law permits him to release and that he would otherwise be free to assert in a lawsuit.
To obtain such a release, the employer engages in a negotiation with Joe, one that has been carefully planned to maximize the opportunity for a mutually agreeable outcome. As in all negotiations, the employer will usually need to give Joe an incentive to come to an agreement, and the size of that incentive will depend on the facts of the case. If Joe is someone who has been caught red-handed engaging in willful misconduct, he might be willing to sign such an agreement in exchange simply for allowing him to resign instead of getting fired for cause. On the other hand, if Joe has served the employer for a long time and isn’t being terminated for unsatisfactory performance, a substantial severance payment may be warranted. Depending on the situation, there are many “bargaining chips” the employer may be able to use effectively in these negotiations and not all of them are monetary. Such bargaining chips may include, for example, a letter of reference for Joe, a commitment not to contest his unemployment insurance claim, a continuation of his insurance benefits, or allowing him to keep designated company property (such as his laptop, company car or cell phone).
The separation agreement should also be carefully drafted to resolve other important aspects of ending the employment relationship, like protecting the employer’s trade secrets and deciding whether the agreement is to be kept confidential.
Seeking such an agreement isn’t appropriate in every case. Sometimes the employer will conclude it’s better to fire Joe in order to vindicate an important principle—for example, to “make an example” of Joe for engaging in willful misconduct. And, of course, terminating Joe by means of a negotiated separation agreement is apt to take more time and cost more than firing him… in the short run.
But usually there are substantial benefits in the long run. A negotiated separation agreement usually is less stressful to achieve, minimizes the risk of future litigation, and is much less expensive than litigation. (Even if Joe loses his lawsuit, the employer’s defense costs if the case goes to trial will usually be more than $100,000.)
In deciding whether or not to terminate an employee by negotiated agreement, a critical factor to assess is the risk of litigation. In most cases, that risk will increase with the status of employee who’s being let go. If Joe is a high-level executive, he’ll be much more likely than an entry-level employee to react to being fired by bringing a lawsuit, and he’ll be able to claim much larger economic damages.
When offered an opportunity to leave his job by negotiated agreement rather than by getting fired, in the great majority of cases Joe says yes and the parties reach a mutually satisfactory agreement. Employers are often surprised when I tell them this, but there are sound reasons why this is so. Joe almost always wants to avoid getting fired. Leaving his job pursuant to an agreement allows him to leave with his dignity (and his resume) intact. And negotiating that agreement gives him some say in how the termination will occur. Indeed, such negotiations often produce “Win-Win” outcomes—ones that are much more beneficial to Joe than being fired and that allow his employer to reduce its workforce in an optimally considerate and effective manner.
For these reasons, when the time comes to terminate employees, employers would do well to consider the option of negotiating separation agreements.
“We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice.” Associate U.S. Supreme Court Justice Sonia Sotomayor
For the past three years, I have had the great privilege to serve as the one civil attorney on the board of directors of Alternate Defenders, Inc. (ADI) As I complete my term, I thought it important to share with others the good work of this valuable organization. ADI is a non-profit corporation that provides free representation to indigent criminal defendants for whom the Public Defender’s Office has a conflict of interest. Such conflicts exist where cases involve codefendants, or in which a victim or other witness is or was represented by the Public Defender. In these cases, the court must appoint a criminal defense attorney outside the Public Defender’s Office to represent that defendant. In these cases and in cases the Public Defender does not handle, such as misdemeanor appeals or Writs of Habeas Corpus, ADI provides the defense.
I have been impressed with the level of skill and experience of the ADI attorneys, all of whom are independent contractors dedicated to helping indigent clients. These attorneys work at rates much lower than those paid by their private clients. They not only work vigorously to defend their clients in court but often find solutions to the problems in their clients’ lives that brought them in contact with the justice system in the first place. Many ADI clients struggle with untreated substance abuse and mental health problems and ADI attorneys connect clients with services that are often a critical part of representation.
Whom Does ADI Serve?
ADI (and the Public Defender) exclusively serve indigent clients against whom criminal cases ranging from misdemeanors to capital offenses have been filed in the Marin County Superior Court. Most clients are residents of the county. Clients comprise the most fragile and rejected segments of our society, particularly the homeless and those afflicted with mental health conditions or debilitating addictions.
Are There Similar Organizations in Northern California?
Many of the Bay Area counties have organizations similar to ADI to assist the courts in appointing conflict counsel. What sets ADI apart is the additional oversight of ADI’s Peer Review Committee, a group of highly experienced criminal defense attorneys and judges who help to insure quality representation of our indigent defendants. The Peer Review Committee regularly evaluates new applicants to the panel and monitors attorney performance on an ongoing basis to provide competent counsel.
ADI also provides free continuing education to its panel attorneys in areas related to criminal defense such as cross-examination, jury selection, immigration, legal writing and new laws.
“The reason I choose to represent indigent defendants is simple. There but for the grace of God go I.” Elissa Lasserre
“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Associate U.S. Supreme Court Justice Hugo Black
How Was ADI Established?
Before ADI, local judges made appointments in conflict cases but it was time-consuming and difficult to manage the fair rotational basis to be in compliance the Penal Code requirements. Thus, a number of local criminal defense attorneys worked with the court to explore options and in 1996, local attorneys Michael Markowitz, Steve Berlin and Kim Druglick, created ADI. The organization would be a non-profit corporation responsible for assignment of counsel, payment of services and record keeping. One of the stated reasons the County and Court agreed to this option was to promote the strength and viability of Marin County’s local criminal defense bar.
Who runs ADI?
A board of directors and a small staff. By design, the board comprises ADI attorneys, a public defender, a private criminal attorney, a civil attorney and a retired judge, all who volunteer their time to manage this organization. Current members are: Juliana Weil (President), Gary Ragghianti, Retired Judge Michael Dufficy, Charles Dresow, Antonia Stainbrook, Thomas Master, and Paul Burglin.
ADI is currently administered by Director Mary Stearns, Assistant Director Tracy Barrett, and Cynthia Porter as Administrator.
“Our clients end up teaching us every day…when we listen.” Mary Stearns
“You don’t judge a society by how it treats the people on top because it’s easy to be nice to them. Look at how people on the bottom are treated and assess the collective degree of humanity.” John Rankin
How are Cases Assigned?
Cases are classified into panels according to the seriousness of the charges against each client. Each panel comprises attorneys qualified to handle those charges. All cases are assigned in rotation to appropriate attorneys and the Peer Review Committee reviews any attorney request to be moved up to a more serious panel.
“There’s a reason criminal defense attorneys are the happiest lawyers on the court floor. It’s incredibly rewarding work. We get to work on substantial constitutional issues and make a meaningful difference in people’s lives.” Tracy Barrett
What Changes Has ADI Seen?
Several ballot propositions have changed classifications of crimes and sentencing. A majority of Marin County voters joined in passing these laws, which mostly benefitted criminal defendants. In 2010, Proposition 36 passed, ameliorating some of the draconian effects of the Three Strikes Law. In 2014, Proposition 47 passed, changing the classification of less serious theft offenses and some drug offenses from felonies to misdemeanors. Last year, Proposition 57 passed, revising the criteria for state parole and putting decisions whether to charge juveniles in adult court back in the hand of the judge. ADI provides excellent trainings to the panel attorneys to ensure the highest quality representation.
“For me, holding the government to its burden of proof is an act of patriotism.” Morgan Daly
“The right to counsel and the protections of our Constitution apply to the rich and the poor alike.” Charles Dresow
Over my three-year term, I have witnessed ADI consistently deliver high-quality legal services from respected criminal attorneys. ADI attorneys consider every case and client to be important regardless of the underlying charges and always strive to accomplish the best result for every client. Sometimes the best results go unnoticed by anyone but the clients themselves. Often clients receive drug and alcohol rehabilitation, mental health treatment or anger management therapy instead of incarceration—a win for the both clients and the county.
If you are interested in helping, attorneys may apply to be on the panels. Please call ADI at (415) 492-1039 and speak with Director Mary Stearns to request more information.
Canal Alliance helps low-income Spanish-speaking immigrants in San Rafael and Marin County acquire the tools they need to thrive. Key services provided by the organization include immigration legal assistance, English language classes, personal counseling and a food pantry. www.canalalliance.org