EMPLOYMENT LAW
California law, as well as Federal law, protects emplyees from oppressive treatment in their employment based on a workers' inclusion in a protected category: race, national origin, ethnicity, religion, sex, physical or mental disability, sexual orientation, etc., or where the worker has engaged in "protected activity", i.e. exercised a legal right or refused to commit an illegal act. Employees are also protected from adverse employment action where they disclose illegal or unsafe employment practices to a government agency or, in many cases, to their own superiors; commonly referred to as a "whistleblower." The following categorical explanations may be helpful in understanding the basic principles of the law in employment relationships.Generally, employees in California are classified as "at-will", which means that the employer can terminate the employment realtionship at any time with or without cause and for any reason, good or bad. It likewise means that the employee may terminate the employment relationship at his or her will. The "at-will" employment doctrine gives the employer wide latitude in terminating the employer-employee relationship, however the employer's ability to terminate an employee is tempered by the following legal principles:
1. Discrimination:The law of DISCRIMINATION protects employees who fit into one or more of what are called "protected categories." Examples of protected categories are: Race, Ethincity, National Origin, Sex, Sexual Orientation, Religion, Physical or Mental Disability, Age, or, in a fairly broad sense, Association. Employers are prohibited from treating employees who fall into one or more of these categories, differently from other workers who are similarly situated. Refusing to pay similar wages, promote, or treat equally in the terms, conditions and privileges of employment is illegal.
2. Harassment:HARASSMENT is the creation of a hostile work environment based on an employee's inclusion in the same DISCRIMINATORY "protected categories", as detalied above, or as a form of retaliation as detailed below. HARASSMENT can come in the form of excessive and unwarrented verbal abuse or disciplinary action, epithets, poor performance evaluations, demotions, wage reductions or other adverse employment actions which have a negative impact on the employees' work history. In the case of SEXUAL HARASSMENT, the illegal conduct manifests itself in two ways, which may work seperately or together; QUID PRO QUO: sexual favors for preferential treatment in your employment, or, HOSTILE WORK ENVIRONMENT: which is the exposure to unwanted sexual jokes, sexually charged photographs, crude and offensive palaver, or being treated differently as a member of the opposite sex. Sexual Harassment laws are applicable to both male and female employees. Employees who are harassed usually experience shame, emotional discomfort, embarassment and humiliation as a result of harassment.
3. Retaliation:RETALIATION cases arise from incidents where the employee has engaged in "protected activity", i.e. exercised a legal right which has had some negative residual effect on the employer or the employee has refused to perform an illegal act for the employer. Examples include an employee being absent from work for extended periods due to a medical condition, or "whistleblowing" -reporting the employer's illegal or unsafe business practices causing govermental investigations into the employer's business practices. When this occurs, the employer usually directs its anger at the employee which often results in the employer taking retaliatory or "adverse employment action" against the employee; i.e. unwarrented discipline, unfavorable transfers, demotion, poor performance reviews, verbal abuse or termination. Retaliatory acts on the part of the employer are usually designed to make the employee's life more difficult in an attempt to make the employee quit their employment.
4. Wrongful Termination:With certain exceptions, an "at-will" employee may be terminated for any reason with or without cause. However, an employee may not be terminated for their inclusion in a "protected category" or for complaining about harassment or discrimination. Nor can an employee be terminated for reporting an employer's illegal conduct or safety violations (commonly referred to as "whistleblowing"), engaging in certain legal activities within or outside the employment, or refusing to perform an illegal act relating to the employment.
5. Breach of Contract:Certain written or verbal agreements may be binding as a contract for employment and is and exception to the "at-will" employment doctrine in California. It is different than an "employment agreement", which usually means that the employee is at-will and does not constitute a contract for employment. If you have an employment cotnract, your rights and obligations are different than those of an "at-will" employee and you should contact this office for an opinion as to your status as an employee or independent contractor.
PERSONAL INJURY
Personal injury matters involve both intentional and negligent acts done by third parties for which you are a victim and which result in physical or financial harm to you. Acts by third parties which cause you harm are typically referred to as TORTS. In order to recover money for personal injury cases, you must establish both LIABILITY (responsibility) and DAMAGES (financial losses and/or pain and suffering). An injured party must establish LIABILITY before they could recover DAMAGES. Without establishing LIABILITY there are no DAMAGES as a result of the act. There are many instances where a person suffers an injury, but there would be no liability. A common example is when a tresspassser is injured on someone else's property.
INTENTIONAL TORTS: The most common types are:
1. Trespass: Trespass is the unprivileged, unauthorized or unconsented to entrance onto and damaging property owned or occupied by another person. The property could be in a natural condition, such as a park or wild landscape, or improved with dwellings or buildings. You could be prohibited from entering the land altogether or you could exceed the scope of your invitation, i.e. entering onto property after closing time or going around or over a fence meant to limit access; any of which would constitute a trespass. Trespass is a physical invasion of property, which means that it could manifest itself an many forms. A person walking onto another's property, throwing something onto another's property or causing some phsyical force to invade the property (fire, or toxic gas) are common examples.
2. Assault & Battery:Assault is usually a precurser to a Battery and is defined as the intentional causing of fear and apprehension that a person will commit a battery on you. For example, if someone were to lunge at you with a closed fist looking as if they are going to strike you, it would cause you to be fearful that you will by struck by that person. You must be aware that this act is occuring for it to be legally actionable. If you didn't see it, it didn't legally happen. Battery is defined as any harmful or offensive touching to the person. It can be as minimal as touching a persons arm, if you found that to be offensive. However battery usually occurs with the actual striking of the body in a more violent manner.
3. False Imprisonment:In order to claim false imprisonment, your freedom to move about must be inhibited or restrained against your will and which restraint is done without privilege or consent. It can be by physical force or by blocking your exit.
4. Defamation:If a person makes an untrue statement about you to a third party who understands and believes the statement and which statement has an adverse impact on your reputation, you may have a cause of action. Some statements are prvileged and therefore not actionable, i.e. statements to a police officer or witness statements in court are common examples. The statement may be verbal (slander), or written (libel) and must be published; spoken to another person or making a written statement available for third parties to read.
NEGLIGENCE:Negligence is a legal theory based on the premise that all persons are charged with the responsibility of acting as a reasonable person would in a similar circumstance, also know in legal terms as a DUTY. For example, all drivers of vehicles are charged with obeying traffic laws; a reasonable driver will not speed, drive through red lights or stops signs, drive under the influence...etc. Doing so would constitute a BREACH of your duty if it leads to harming another person or busniess. The failure to exercise reasonable or ordinary care in one's daily activities and which failure of care leads directly to physical or financial harm to another is known as CAUSATION and may result in liability to the person suffering the harm. The harmful effects resulting from the failure to exercise reasonable or ordinary care is commonly referred to as "DAMAGES." Damages can be in the form of physical and/or emotional injury, property damage, financial damage or any combination thereof. *The information contained herein is for informational purposes only and does not constitute legal advice and should not be substituted for obtaining legal advice from a licensed attorney. No guarantee or warranty, express or implied, is made as to the accuracy or completeness of the information or the current state of the law. Additioanlly, the viewing of this website and the contacting of this office does not create an attorney-client relationship or other privileged relationship.
INTENTIONAL TORTS: The most common types are:
1. Trespass: Trespass is the unprivileged, unauthorized or unconsented to entrance onto and damaging property owned or occupied by another person. The property could be in a natural condition, such as a park or wild landscape, or improved with dwellings or buildings. You could be prohibited from entering the land altogether or you could exceed the scope of your invitation, i.e. entering onto property after closing time or going around or over a fence meant to limit access; any of which would constitute a trespass. Trespass is a physical invasion of property, which means that it could manifest itself an many forms. A person walking onto another's property, throwing something onto another's property or causing some phsyical force to invade the property (fire, or toxic gas) are common examples.
2. Assault & Battery:Assault is usually a precurser to a Battery and is defined as the intentional causing of fear and apprehension that a person will commit a battery on you. For example, if someone were to lunge at you with a closed fist looking as if they are going to strike you, it would cause you to be fearful that you will by struck by that person. You must be aware that this act is occuring for it to be legally actionable. If you didn't see it, it didn't legally happen. Battery is defined as any harmful or offensive touching to the person. It can be as minimal as touching a persons arm, if you found that to be offensive. However battery usually occurs with the actual striking of the body in a more violent manner.
3. False Imprisonment:In order to claim false imprisonment, your freedom to move about must be inhibited or restrained against your will and which restraint is done without privilege or consent. It can be by physical force or by blocking your exit.
4. Defamation:If a person makes an untrue statement about you to a third party who understands and believes the statement and which statement has an adverse impact on your reputation, you may have a cause of action. Some statements are prvileged and therefore not actionable, i.e. statements to a police officer or witness statements in court are common examples. The statement may be verbal (slander), or written (libel) and must be published; spoken to another person or making a written statement available for third parties to read.
NEGLIGENCE:Negligence is a legal theory based on the premise that all persons are charged with the responsibility of acting as a reasonable person would in a similar circumstance, also know in legal terms as a DUTY. For example, all drivers of vehicles are charged with obeying traffic laws; a reasonable driver will not speed, drive through red lights or stops signs, drive under the influence...etc. Doing so would constitute a BREACH of your duty if it leads to harming another person or busniess. The failure to exercise reasonable or ordinary care in one's daily activities and which failure of care leads directly to physical or financial harm to another is known as CAUSATION and may result in liability to the person suffering the harm. The harmful effects resulting from the failure to exercise reasonable or ordinary care is commonly referred to as "DAMAGES." Damages can be in the form of physical and/or emotional injury, property damage, financial damage or any combination thereof. *The information contained herein is for informational purposes only and does not constitute legal advice and should not be substituted for obtaining legal advice from a licensed attorney. No guarantee or warranty, express or implied, is made as to the accuracy or completeness of the information or the current state of the law. Additioanlly, the viewing of this website and the contacting of this office does not create an attorney-client relationship or other privileged relationship.