employment attorney Orange County-Do You Know Your Employment Rights?
employment attorney Orange County-Do You Know Your Employment Rights
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According to employment attorney Orange County, a civil lawsuit for employment-related matters, such as wrongful termination, discrimination, retaliation or harassment, the employer is entitled to raise defenses to the claims. Time and again, the same "affirmative defenses" are raised and you could expect them in your case, too. The job of a proactive employee's attorney is not only to present the facts in the light most favorable to your case, but to seek out and destroy the defenses put forth by the employer, where they are pre-textual or presented in an unfair light. Let's look at one of the standard defenses,the employee's alleged failure to file the lawsuit timely says employment attorney Oakland.
Generally, in California, you have two years to file for common law causes of action, such as public policy tort termination If you are alleging a violation of a statute, such as the Labor Code, you may have up to three years. It's four years if your attorney also alleges a violation of the Business and Professional Code. In order to recover attorney fees, where discrimination, retaliation or harassment is alleged and based on age, sex, race, national origin, physical or mental condition discrimination), a charge of discrimination must be filed with either the federal EEOC within 300 days or the California Department of Fair Employment and Housing, within one year of the last act says employment attorney San Diego. Under the continuing violations doctrine, an employee can step back (like rocks in a pond) more than one year, so long as no more than one year existed between similar acts of discrimination. So, for example, if an employee is sexually propositioned by her boss in December 2008 (say at the company Holiday Party), and then again in November, 2009 (say at the company Thanksgiving blast), the earlier act would be allowed in evidence. And, in some cases, where more than a year has gone by, the prior act may still be allowed in as part of a pattern of discrimination, or to show the employer had knowledge of the propensities of the defendant manager to act badly. It can also be introduced to destroy the credibility of the manager who denies he/she engaged in such bad acts.
According to employment attorney Orange County, there are limited exceptions to the statutes of limitation, such as when the employee is unable to file a lawsuit due to incarceration, the employer is in bankruptcy (possibly a Chapter 11 reorganization), mental incapacity. But these exceptions are few and far between. When they apply, the time period to file the lawsuit is "tolled", and the clock stops running until the disability is removed.
Other exceptions to the time rule may apply when the employee belatedly discovers a misrepresentation (recklessly or intentionally made) that was material toaccepting the job or declining other jobs, or even just to continue to remain employed. Some of these frauds are routinely seen in company handbooks, or on wall posters, orientation presentations, etc., where, for example, it is stated that the company is an "equal opportunity employer" and the facts prove differently. In wage cases, fraud can be based on a promise to pay one amount, an employee relocating to or from California, and then discovers that the amount promised was not true, or that the ability to earn that amount would not be humanly possible (if say, a commission basis).
Special rules apply for unionized workers, who must follow the grievance procedures of their union's collective bargaining agreement. If the union fails to properly represent the employee and arbitrarily ignores the member's rights, a lawsuit may be filed against the union for breach of the duty of fair representation and the company for wrongful termination. Generally, this lawsuit must be filed within six months under the National Labor Relations Act Section 301. And, it must be filed in federal court.
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