Michael Robert Kirschbaum's Answers

Questions about wrongful termination in California as well as unemployment claim

My colleague is correct. It is illegal for an employer to terminate an employee who complains about unlawful wage practices who reasonably believes the workplace is unsafe. Lawsuits for wrongful termination against private employers can result in damages for economic losses that result from the termination, emotional damages and, sometimes punitive damages. Timing is critically important in these cases. It sounds as though the timing of events in your case raise some serious questions about...

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Can my old boss ask companies to stop working with me??? Restraint of Trade???

You may have a basis for a claim known as a tortious interference with prospective economic advantage or with prospective contractual relations. These cases are a bit complex and require an in-depth analysis of the facts and evidence. You should take the time to consult with an experienced employment law attorney in your area for an opinion and to discuss your legal options. You can find employment attorneys on the website for the California Employment Lawyers Association, located at www....

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Is there a formula to calculate compensation for wrongful termination?

Some of us went to law school because we were told there would be no math. So, many of us who handle employment cases are woefully inadequate in calculating past, present and future damages resulting from being unlawfully terminated. But seriously, when calculating damages that include loss of future income, including retirement benefits, loss of investments, etc., we hire economic experts who know how to do the proper calculations. It is not unusual for both sides to hire their own experts...

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Could it be considered sexual harassment if someone sends unwanted sexually explicit pictures of themselves to me?

If this is in an employment context and you are receiving unwanted naked pictures from a coworker, you only need to receive it one time to report the activity to your employer. It is the employer's responsibility to take immediate corrective action. If this is not an employment relationship, you should immediately tell the person to stop. Or you can report it to the local police, depending upon the nature of the relationship and the level of threat you perceive from the individual.

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Once a schedule is posted in a restaurant, does the employer have a right to call me off because it's slower than they thought?

Yes, the employer has the right to take you off the schedule. They have the right to change the schedule any way the deem necessary for business reasons, which happens to be very common in the restaurant industry. If business turns out to be slower than anticipated, it is common practice to cut staff so they are not paying employees to stand around with nothing to do. If you had already reported to work, they would have to pay you no less than 2 hours reporting time pay and, possibly, up to...

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Disclosing inventions in employment contract

If you have invented or are in the process of inventing items which need to be protected, you need to have an intellectual property attorney advise and assist you in accordance with your specific needs. A general and open forum such as this would not be the best place to obtain the kind of help you will need, particularly if you are going to be working for a company in which there may be an inherent conflict of interest. I have edited your question for intellectual property attorneys to...

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Is this a conflict of interest?

Non-compete agreements are generally not enforceable in California, with minor exceptions. Once you leave an employer, you are free to work anywhere you wish, as long as you do not divulge your former employer's trade secrets to your new employer or use such trade secrets in your new job.

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If my company hires individuals as independent contractors can I be liable to 3rd parties for the negligence of my contractors.

Contracts which state a person is an independent contractor are the least important fact that would be considered by a reviewing court over the true status of a person providing services. There are about 20 factors that are weighed, depending on the nature of the business, the most of important of which is the degree of control the company has over the individual and how essential the service they provide is for the business. Most personal injury attorneys will pay no heed to the contract...

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What can I do?????

The EDD has an audit department which investigates employers who employ individuals without listing them as employees and making the required tax deductions. They have a working relationship with the California Department of Industrial Relations, which can also investigates employers for labor law violations. The penalties can be stiff and they would be required to pay your payroll taxes, if it can be proven. But that is a big if. You need to think about how you can prove you had an...

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Employer forced me to shave today at work. Company has no facial hair policy. 3 other employees were allowed to work with beards

Employers may legally impose grooming policies. How they implement the policy may depend on a variety of considerations, such as the length of the hair, the nature of the job the employee does, the customer they serve, etc. What they cannot do is treat people differently because of race, nationality, or some other improper consideration. You do not provide any information that would indicate unlawful discrimination other than that other employees have some form of facial hair. Have you asked...

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