Dec. 31, 2015

The Employment Law Question:

How can I sue them? What do I start with? Do I have to go to the Civil Court, or to the Labor and Workforce Development Agency? [Taken from AVVO]

A year ago (October 2014) I started working at the Child day care as a care giver. I worked there only a week and observed a child abuse. I called 911 and reported about it. The owner got mad and pushed me hard on my chest, right where my pacemaker is (I was 29 at that moment; I have a congenital heart disease and this is my 4th pacemaker). Trying to protect myself and make her stop pushing me (she kept doing it) I accidentally hurt her. The police arrived (the one that I called regarding the child abuse) and she said it was me who attacked her. Since, unlike her, I didn’t have any marks, I was arrested, and spent 5 days in the jail. I was charged with a felony first, but then it was dropped to misdemeanor – Battery. I won the case and unanimously was found not guilty. Now I got a letter from the Labor Commissioner that says I can sue them based on the Labor Code Sections 210, 225 and 226.8.

The Straight Employment Law Answers:

Yes, you may have cause to sue, but not for the reasons your question cites by the Labor Code. Those sections confer the right of collecting penalties upon the State of California through the Labor Commissioner directly against the employer. Your case is a much bigger fish than those civil penalties.

First, there is “whistleblower retaliation” because of your legal right to report a suspected crime or regulatory offense. Second, if your employer knew of your congenital heart condition and several pacemakers, and pushed you in the chest specifically to cause you to potentially lose your life or to be in terror of losing your life, that conduct itself would be a crime, and would support a civil case for “intentional infliction of emotional distress.” Third, a creative twist on this scenario, if the facts support it, is that the conscious attack aimed at your chest was a form of disability discrimination. This particular type of case allows you to recover attorney’s fees. Fourth, the charge against you, now more or less proven false, was a defamation, and if repeated by your employer to persons other than the police or other agents acting in an official capacity, could be a case for defamation of character. Every case is also evaluated by collectibility of an award of damages. If this is a large child care facility, and if it has insurance that at the very least may trigger a duty by the carrier to defend the Daycare, then there may be reason for you to proceed. I would recommend including a “negligence” cause of action in the pleadings to bring the insurance money into the equation as you try to sort things out through discovery. Fifth, and most obviously, you also have a civil case for both assault and battery and can collect monetary damages.

These several legal theories I’ve identified also support a case for punitive damages if you succeed in proving malicious intent by clear and convincing evidence. Unfortunately, the punitive damages would not be covered by insurance, but the carrier, if there is one, will feel the pressure to settle if a demand is made within the policy limits, and they do not pay it, with the possible result of being found to have acted in bad faith. The bosses testimony in the criminal proceeding is available by transcript, and any attorney proceeding would want to review that testimony, as well as your own, if you waived your Fifth Amendment right.

Orange County Employment Law Attorney

Dec. 2, 2015

The Employment Law Question:

Can my employer use video and audio recording to monitor the workplace?

Straight Employment Law Answers:

The answer is “No,” regarding video, unless you are informed and provide consent — that is, no hidden cameras. And there’s the catch: if you see the cameras being installed, and elect to continue to work in areas under surveillance, there is implied consent.

As for audio, the answer is also “no,” for the same reasons: you can’t consent unless you have knowledge, and opportunity to either accept the monitoring, or leave the job. Phone monitoring is especially sensitive because federal and state laws require the party being recorded to provide consent. Consent again can be implied by continuing the conversation after being informed, or electing to hang up. Secretly recording conversations in California without consent is a crime. Smart employers make full disclosure and obtain written consent before installing the surveillance.

Privacy Rights at Work

Even if you provide consent, the scope of the consent is limited–that is, video surveillance of dressing rooms and toilet facilities would be unenforceable by law because of statutes prohibiting such intrusions, or unenforceable because contrary to fundamental public policy under the common law. But, the reality is that employers will be given considerable latitude to monitor work activities, especially if the work involves handling other peoples’ currency deposits, credit card transactions, or valuable assets.

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