EMPLOYMENT LAW ISSUES

Sundays from 8 AM to 9 PM, Karl Gerber of the Employment Lawyers Group can be heard on 105.1 FM. His show is called the Karl Gerber, Workplace Lawyer Show. It has been on 105.1 FM since 2022, but started in 2018. After recording breaking runs on KABC 790 AM for four years, he transitioned to 94.7 The Wave, and ultimately 105.1 FM. Listen to weekly shows going back to 2022. Earlier shows can be listened to, often with visuals on Youtube.

Episodes of the Karl Gerber, Workplace Lawyer Show discuss: . The differences in being in arbitration, federal, and state court. . The importance whether an arbitrator, judge, or jury will decide an employment case. . What percent of juries must agree in federal court vs. state court in order to win . Exhausting administrative remedies when, where, and who

Call 877-525-0700 to talk to Karl Gerber about employment law

EXHAUSTING ADMINISTRATIVE REMEDIES FOR WAGE CASES AND EMPLOYMENT DISCRIMINATION

Karl Gerber said the following about the need to exhaust administrative remedies in employment cases, in Episode 61 of the Karl Gerber Workplace Lawyer Show.

There is a formality is that you have to do that is called exhaust administrative remedies. You don't have to do that for a case for wages. You can go directly in court. PAGA is the exception. And that's why I encourage people to do that. I encourage them not to file with what you may call the labor board. You may also call them things like The DLSE or DIR (Director of Industrial Relations). Cases for discrimination and harassment, however require administrative exhaustion. Those are cases for employment discrimination or harassment based on age, sex, race or disability, things like that, sexual orientation, different medical conditions, family medical leave rights, sexual harassment. All of that is something that you can sue for if you can prove that you had a bad thing happen to your work because of that.

The bad thing generally needs to be a job termination. If it's something less than that, asking a contingency fee lawyer to get involved, I'm not sure. The exception is obviously sexual harassment that is severe and pervasive. That's something that can cause a lot of damage to. The same with racial harassment that is severe and pervasive. We get involved in the case.

Even if there is no job termination, sometimes there could be disability harassment, too. There could be age harassment. I have not had a age harassment case in a long time. There could be religious harassment too. I had a pretty good case like that that settled. Religious harassment can happen too.

If you've got to sue for something that is illegal, discrimination, harassment, not that I think my boss is harassing me because they're coming into my office every 5 minutes and I just wish they weren't coming to my office so much, you have to do what's called exhaust administrative remedies.

As a lawyer, I do it very quickly. I have my own account with the California Civil Rights Division. I go in and I do it for my client online, and I ask for what's called an immediate right to sue letter, a right to sue a letter that will be issued to my email when I'm done correctly, filling out the forms. At that point I can go and sue for these violations. If you go to the EEOC, it does not work that way. I don't think they have a process of getting that automatically.

If you need to sue for employment discrimination call 877-525-0700

EEOC NOT RIGHT PLACE FOR CALIFORNIA EMPLOYMEMT DISCRIMINATION

Also in Episode 61 of the Karl Gerber, Workplace Lawyer show Karl Gerber addressed the fact the EEOC is not the proper place to sent clients. Here is what he said:

I get at least ten calls a week at the Employment Lawyers Group from people that filed at the EEOC. They did it without a lawyer because maybe they've heard of the EEOC. I had heard of it in college, and it's been around a long time. And we used to know this organization of the Department of Fair Housing and Employment in California, but it changed its name to the California Civil Rights Department, which I think was a huge mistake because it just created confusion. If had your aunt or your parent that had experience with something like this and they went to school and they knew it was the DFEH, well, you know, people knew what it was and the name was changed the name was changed which confuses a lot of the population. The CCRD is the place to go. The EEOC is not. The EEOC is going to be operating on federal discrimination statutes which are less favorable to the employee.

The California versions employment laws are all better, and the only exception is that for family medical leave, you don't need a right to sue ladder for the federal FMLA, but you know, under federal FMLA, you can't get emotional distress damages. So if someone gets fired because they have a serious medical condition, they take off because they have a broken foot for, you know, two months of healing and they want to come back after two months and they're fired. If their job is not held open, or they are given an inferior position that pays $15,000 a year less that is very distressing for them because they love their coworkers. They say I liked working at the company. They worked there for six years or 16 and they can't bring a case for emotional distress damages. So, you know, that's not the place to go. And the other thing with the EEOC is this concept of you were given permission to sue after you exhausted administrative remedies. You have a much shorter time to actually bring your lawsuit than if you go to the state version. So, you know, this is just an example of being in the right forum. And if you come in with a EEOC right to sue letter, you went for the EEOC.

You also may find yourself in federal court because you're suing and the federal remedy is and federal court is not really a great place to be for these kind of cases. Federal court is not favorable to employees. It's really for big business disputes. It's for some types of, you know, criminal cases that are federal crimes. I don't think it is really well suited for individual employment cases.

And if you ever have an appeal, I did in Ninth Circuit Court of Appeals. That's an appeal of a federal court decision. And it's the next level of appeal before the United States Supreme Court. They don't really care a lot about these employment cases. They're getting cases about interesting immigration rights and, national policy. They're just not there for.

The other thing is the federal court is not there to make state law. And so if you're in federal court on what really is a state case, they may even say we want to certify this issue to the California Supreme Court to make a ruling on how to interpret the law because we don't want to interpret California law.

But guess what? Employers want you to be in federal court because it's harder for you there. You have to have a unanimous jury. In Federal Court, the judges do not have to have a hearing on a motion. If there's a motion to throw out the case, the judge can decide, I'm not going to have oral argument on that. I'm going to decide it on the paper.

You hope that if that's serious of a motion, the court would want to actually have oral argument because something may have come up between the time when the lawyer submitted the paper and the dates for argument or, maybe the judge got something wrong and you wanted to tell them during what we call a colloquy in court, where the court is saying why they are ruling and you're trying to begin your opportunity to convince the court to rule in your favor. But the truth is, once the court has made up its mind on these legal issues for these motions, oral argument is almost always a complete waste of time. They generally don't change their tentative rulings. I don't know why that is. I haven't been a judge. I have not talked to enough judges about this. It might be a lot of these judges have not adequately read the papers and they're relying on what a research attorney or a law clerk has written.

If you're a judge and you have a whole bunch of motions every day that would take three or four hours to decide each, and there are six or ten of them on calendar it is almost impossible to read all the papers. That might be why judges generally stick with what's called their tentative ruling, and sometimes it's just erroneous. I have one right now where I'm going to appeal it because I think that this judge just really got it wrong. I mean, that can happen. But my point that I want you to follow is that it makes a difference where your case is going to be heard. And it really isn't to your benefit to be trying to sue.

Under federal law, state law is much more favorable and it's more likely that you're going to stay in state court. If you're using state law, then you're trying to use that or a lot. And the federal laws are the minimal amount of protection. That's what they're referred to, the minimum amount of protection for labor laws. It is up to the states to come up with more expansive laws and California has done that.