subject: Employment Attorney Los Angeles [print this page] In California, most employees who have been treated badly by adverse actions such as termination, unfair demotions, discrimination, retaliation or harassment in the workplace, want to sue the boss who did the bad act(s). Unfortunately, California Labor Laws and the court interpretations have set strict limits on our client's right to sue their bosses individually, as opposed to the right to sue the employer for most workplace wrongs. Let's take a look at when you can sue your boss as an individual, and why you might want to do that says employment attorney in Orange County.
First, and most importantly, the law of wrongful termination provides that only the employer is liable for wrongful termination. It may be that your boss forced you to quit or fired you for whistle blowing and getting him in trouble with his boss, but you are still required to sue only your employer (not your boss) for wrongful termination. If the boss is actually "the" company (say he has not properly incorporated it or commingled his assets with his company's assets), then after the judgment is entered, the court may allow the judgment to be entered individually against him. Or, it may be that the company has, at all times, been a "dba" (doing business as) and therefore there is no "real" corporation behind the name, allowing for your bosses' individual liability.
According to wrongful termination lawyer in Los Angeles, under the California Labor Code, only the company is liable for violations related to unpaid overtime, meal and work breaks, and penalties accruing to you. However, under the federal Fair Labor Standards Act (pretty much identical to the California Labor Code and regulations under the Department of Labor Standards Enforcement agency), an individual can be sued. State courts have jurisdiction to hear FLSA cases, but the chances are the defendant employer will "remove" the case to federal court. This is a vastly inferior forum for plaintiffs and should only be your litigation forum after careful research and thought. Several years ago, a survey of employment law cases actually litigated in federal court showed a verdict for plaintiffs of about 4%, versus 60% in state court. This was a survey of discrimination, not Labor Code cases, so the results should be viewed with caution if your's is not a discrimination case. We routinely "take the chance" and name individuals in the company who were responsible for non payment of wages under the federal laws when there is a good chance that the employer will declare bankruptcy. This has been particularly useful in some class action cases we are currently litigating as the very wealthy individuals declared their corporations bankrupt in order to avoid paying our thousands of class members.check here.
In most cases, discrimination suits under the California Government Code 12940 (age, sex, race, religion, national origin, physical or mental condition, failure to accommodate or dialog) must be brought only against your employer. This is because a qualified employer must have at least five employees and an individual supervisor would not meet that definition. However, the courts do allow an individual to be named for "harassment" as that is considered outside the scope of permitted supervisory activities. In a recent case our firm handled, sex harassment led not only to a six figure settlement against the company, but a removal of the supervisor from the production line.
Some workplace wrongs are so reprehensible that individual liability will attach regardless of the overall liability of the corporation for your bosses' bad behavior. Assault and Battery, Sexual Battery under California Civil Code 1708.5, Intentional Infliction of Emotional Distress, these are all examples of wrongs your boss can be personally liable for. The main reason, usually, to name an individual is when the company is not headquartered in California (the US Supreme Court has characterized the issue as determining the locale of the corporation's "nerve center"), and removal to federal court is a real possibility. This occurs when the dispute is between you, a resident of California, and the "foreign" corporation, meaning usually Delaware of whichever state it has its "nerve center".
There are risks in naming an individual defendant, so legal advise on this critical step is mandatory. For example, what happens if the individual declares a Chapter 7, 11 or 13 bankruptcy? Will that forestall the lawsuit against the corporation? What if you signed an arbitration agreement with your employer? Will it require that the individual defendant be joined in the arbitration or will you be able to proceed with a jury trial separately from the corporate arbitration? (An arbitration agreement is strictly construed in California and will be the subject of a future blog). What if you lose on all your causes of action against the individual but win against the company? Will your former boss now sue you (and your attorney) for malicious prosecution or abuse of process? Even if you get a judgment against your boss as an individual, will you be able to collect?
As always, this advise is educational in nature only and an experienced employment attorney in your state should be consulted for legal advise. We represent employees only throughout California and are the state's largest employee-only firm.Click Here
