Frequently Asked Questions (FAQ)

Current Workplace Disputes



» What steps should I take right now if I am having a dispute with my employer?


    Employers generally have the upper hand in employee disputes and usually consult attorneys or HR personnel regarding your dispute.  To ensure you protect your interests, you should document in writing any issues you have with your employer and consider discussing your situation with an attorney.

» What should I do if my employer has threatened to fire me if I file a complaint?


    Under California law, an employer cannot retaliate against you for filing an employment law complaint or even for simply raising an employment law issue you reasonably believe is a possible violation of the law. If your employer is threatening to retaliate against you, this is a serious matter.  A retaliation lawsuit can result in an employer paying significant compensation.

» What should I do if my employer gives me a severance agreement after terminating me?


  You should never sign a settlement or severance agreement without first consulting an attorney. Such agreements usually waive your rights to file a lawsuit against your employer. In many situations an employer will purposely offer less money in a severance agreement than is justified in the situation. You should consult an attorney in order to ensure that all your rights are protected and that you obtain a just and fair resolution.


Pre-Lawsuit Considerations



» Are there any time limits for when I can file a lawsuit?

  Yes, there are several time limits known as "statute of limitations" to consider in employment law matters.

In discrimination and harassment complaints, there are two time limits to follow. First, you must first file an administrative complaint or request a right to sue notice with the California Department of Fair Employment and Housing within one year of an adverse employment action. In the case of termination, the one year period runs from the date of termination. Secondly, if you decide to file a lawsuit in state court, you must file it within one year of obtaining the right to sue notice.

In lawsuits for unpaid wages the statute of limitations is generally three years, though it can be four years if the employer is found to have acted "willfully". 

» How long will it take for my case to be resolved?


  Unlike what you may have seen on courtroom TV shows resolving your case is not always a quick process. Since all cases are different it is not possible to give a definitive time frame for when a case will end.

In some cases, we are able to obtain a settlement after sending a demand letter. In other cases, we may obtain a settlement shortly after a lawsuit is filed in state court. However, in some cases litigation may proceed for months or even years. It is not uncommon for a case to involve extensive discovery disputes and motions. In cases where the parties cannot reach a settlement, a jury trial will occur.

We are mindful of the fact that many clients wover a year after ant an expedient resolution of their case, but you should know that sometimes the best possible outcome can only be achieved after extensive litigation.

» Can I prevent future employers from obtaining negative references from my current employer?


  Most employment litigation cases that result in a settlement include a confidentiality provision in the settlement agreement. This provision restricts both parties from discussing any terms of the settlement, including the amount of compensation paid to the employee.  In addition, it is common for employers to agree within the settlement agreement to only state your dates of employment and position held in the event that any prospective employer contacts them for a reference.


Initial Free Consultation



» Can my initial consultation be done over the phone or in the evening or weekends?


  Yes, we actually prefer conducting the initial consultation via phone as it is the most efficient way of learning basic facts of your case. We are available for evening and weekend appointments and have conference rooms available throughout Northern California.

» What information will I need to provide for my initial consultation?


  We generally will want to know more details about the severity of the actions taken against you by your employer. We will analyze your entire relationship with your employer in order to evaluate what claims you may have and the strength of your case.

» What happens if the firm decides to accept my case?

  After we accept your case, we will send you an engagement letter which outlines the scope of our representation and then then have a follow-up consultation to discuss further details about your case. After reviewing the facts of your case we will generally proceed with one of the following actions: (1) sending a demand letter to your employer; (2) immediately filing a complaint with the DFEH (the state equal employment opportunity agency) or Labor Commissioner (for wage and hour matters); or (3) requesting a right to sue letter (in discrimination/harassment cases only) and filing a lawsuit in California Superior Court.


Our Fees and Expenses



» What fees will the firm charge for representing me?


  We work on a contingent fee basis meaning that we only obtain our attorney fees if we achieve a positive outcome in your case. No recover - No Fee. Our fees are paid by taking a portion of your settlement. Working on contingency allows us to work diligently on your behalf without the distraction of billable hours, knowing that both of our interests are tied to a successful outcome in your case.

Our contingent fee is typically around one-third of the total settlement amount, which is the industry average. However, depending on the circumstances and complexity of your case, the amount of the contingent fee may be slightly different. In addition, the contingent fee increases slightly depending on when a case settles i..e a case that goes to trial will require a higher contingency fee than a case that settles before an action is even filed.

» What fees are involved in filing a lawsuit?


  Cases that result in filing a lawsuit in court involve certain costs that must be paid to the Court and other entities. A $450 filing fee is charged to file a lawsuit in California Superior Court though it is slightly more in San Francisco Superior Court. In addition, state courts recently started requiring that a plaintiff pay $150 as a non-refundable deposit for jury fees. Other fees that may be incurred include service of process fees, mediator fees, and deposition-related fees. In some cases, our firm will advance certain expenses on your behalf and then deduct these advanced expenses from any settlement amount.

Some plaintiffs in employment law matters can qualify for a fee waiver in state court, which waives both the $450 filing fee, $150 jury fee, and some other fees. We can assist you in filing out the forms needed for qualifying for a fee waiver. There are three ways to qualify for a fee waiver:

(1) You are receiving public benefits, like Medi-Cal, Food Stamps (CalFresh), Cal-Works, General Assistance, SSI, SSP, Tribal TANF, IHHS or CAPI;

(2) Your monthly household income before taxes is less than certain levels. For 2013, the levels range from $1,163.55 for one person to $2,813.55 for a family of five; or

(3) If the court finds that you do not have enough income to pay for your household's basic needs and the court fees.

» Will the firm be able to provide me with an estimate of a possibly recovery in my case?


  We will make every effort to provide you with a realistic picture of the value and strength of your case but you should know that litigation is unpredictable. No two cases are the same and so it is not always possible to provide a completely accurate estimate of exactly how much a case is worth. Generally though we only accept a case if we feel it has a good chance of resulting in a positive outcome for our client. Contrary to popular belief the vast majority of civil litigation cases in the United States do not result in million dollar outcomes.


Dealing with Administrative Agencies



» Do I have to file my discrimination or harassment claim with a state agency before filing a lawsuit in state court?


  Yes, if you are filing a discrimination or harassment lawsuit you first have to obtain what is called a "right to sue" letter from the California Department of Fair Employment and Housing (DFEH). This is a bureaucratic procedural action that we can obtain for your online. After you obtain a right to sue letter, you are free to file your lawsuit in state court.

The DFEH also provides a mechanism to file a complaint directly with their agency. In some cases,we may recommend that you take this action instead of filing a lawsuit immediately. However, there are certain drawbacks to filing directly with the DFEH.

» Do I have to file my wage and hour claim with a state agency before filing a lawsuit in state court?


  No, unlike with discrimination and harassment cases, you do not have to first obtain a right to sue letter from a state agency before proceeding with your case. You can instead directly file a lawsuit in state court.

Instead of filing a lawsuit, you also have the option of filing a claim with the California Department of Labor Standards Enforcement, also known as the "Labor Commissioner".  The Labor Commissioner will investigate your wage claim and issue a determination if you are due any wages or penalties. There are certain advantages and disadvantages to filing a Labor Commissioner claim instead of filing a lawsuit in state court, which we can go over with you during an initial consultation.

» Why is it generally better to bring my claim under California law instead of federal law?


  California employment laws are generally much more pro-employee than federal employment laws.  For instance, under California law an employer is strictly liable for discrimination by a supervisor whereas under federal law an employer has a possible defense against liability. Moreover, California makes it easier to prove that a perpetrator of discrimination is a supervisor. Another major advantage of California employment law is that there is no cap on compensatory and punitive damages, while under federal law there is a $300,0000 cap for large employers. These types of differences between state and federal law can make a major difference in the value of your case.

In wage and hour matters, California law covers many issues that federal law does not even make unlawful, such as failure to provide proper meal or rest breaks and forfeiture of vacation pay. California law also has stricter requirements regarding overtime, requiring overtime pay for more than eight hours of work a day or 40 hours a week whereas federal law only requires overtime pay for more than 40 hours in a week.

Finally, California state court is generally considered to be more pro-employee than federal courts in California.


The Litigation Process



» What is a Complaint?

  A Complaint is a formal legal document that sets out the facts and legal reasons of your case. It is the first document filed in a lawsuit. Within the Complaint are all the pertinent facts that we believe are important to supporting your causes of action. We will take the information that you tell us during our consultations and turn that into a Complaint which you will then review and verify via your signature before we file it in Court and serve it on your employer.

» What is an Answer?


  After a Complaint, your employer will have a certain period of time (typically 30 days) to file an Answer. An Answer is a formal written statement that admits or denies the allegations in your Complaint and sets forth any available affirmative defenses.

While in non-employment litigation matters it is sometimes possible for an employer to immediately reply to a Complaint by filing a motion to dismiss or demurrer, in employment litigation this is not as common. An employer will usually file an Answer. In some circumstances, an employer may try to remove your case from state court to federal court via a process known as removal, but an employer may only do so in certain situations.

» What is Discovery?


  Discovery is a pre-trial procedure in which both parties require the other party to disclose information that is relevant to the preparation of the requesting party's case and that the other party alone knows or possesses. Discovery devices narrow the issues of a lawsuit, obtain evidence not readily accessible to the applicant for use at trial, and ascertain the existence of information that might be introduced as evidence at trial.  Discovery commences after your employer files an Answer to your Complaint. Discovery can either be conducted via written questions or through verbal interviews known as depositions.

In many circumstances, your employer may make unreasonable discovery requests in which case we may have to ask the Court through a motion to resolve the discovery dispute. This is especially true in employment litigation matters, in which employers will hire large firms that bill by the hour. These firms have an incentive to engage in unnecessary discovery disputes because they want to run up the amount of fees they charge the employer.

» What is Summary Judgment?


  Summary judgment is a procedural device typically used by employers in employment litigation matters in which the employer attempts to dispose of a case without a trial. It is the main method employers in employment litigation matters use to try to get a case dismissed.

While the summary judgment process can be complicated to explain, summary judgment basically allows the Court to determine whether all materials facts in the case are undisputed between the parties and whether based on these undisputed facts the employer is entitled to a judgment without having a trial. Alternatively, if the Court finds there are disputed facts and/or the employer is not entitled to judgment as a matter of law, then the the summary judgment motion will be denied in whole or in part and the case will continue.

Employers often try to abuse the summary judgment process by filing lengthy motions that skew the facts of a case.

» What is Mediation?


  Mediation is a meeting between the parties and their counsel in which a neutral individual attempts to help the parties settle their dispute. A mediator is typically a retired Judge or an experienced litigator who is trusted by both parties. The mediation is generally informal, non-adversarial, and held outside of a courtroom. In employment litigation, mediation is the most common mechanism for resolving a lawsuit.

» What happens if my case settles?


  In the event that we are able to reach a settlement with your employer, we will prepare a settlement agreement for your review. The agreement will outline the compensation that you will be paid in return for signing the agreement. As part of the agreement, you will agree to withdraw your lawsuit and waive most of your rights to bring any additional lawsuits against your employer.
Norcal Employment Counsel - Representing Employees in Workplace Disputes Throughout Northern California
Norcal Employment Counsel - Representing Employees in Workplace Disputes Throughout Northern California
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

info@nccounsel.com









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