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Know Your Rights:


Do I have a case?

The merits of any case can only be determined after many hours of discussion and a review of any documents by the lawyers who are asked to evaluate your case. You can assist lawyers in evaluating your case by spending time in advance of meeting with them by preparing a chronology and organizing any documents. If the lawyer you consult does not provide you with a favorable opinion or provides you with an opinion you disagree with, you should consult another attorney to obtain a consensus.

How do I pick an attorney?

Picking an attorney to represent you in any matter should be done carefully and only after a lengthy discussion between you and the attorney. A successful attorney-client relationship is based on trust. You should remember that an attorney works for you and that while he or she has unique skills and education, picking the right lawyer should be about finding the right person. Few lawyers are skilled in all areas of law. If your matter involves a labor or employment issue, you should find a lawyer or law firm specializing in this area. Several organizations can assist in providing names of lawyers or law firms specializing in this area. Your local bar association, California Employment Lawyers Association, and the National Employment Lawyers Association can recommend lawyers.

How long do I have before I file suit against my employer?

The rules that govern the time frame in which you must file a lawsuit are called statutes of limitations. Statutes of limitations in employment matters vary according to the claim. The application of these rules to your particular case is often complicated and requires the assistance of a lawyer. However, you should generally be aware of these rules and understand that there is little leeway or exception for filing claims beyond these statutes. Typically, you have two years from the date of injury to file tort (personal injury) claims. Tort claims in employment cases include emotional distress, battery, slander, and libel claims, among others. Claims of discrimination based on your race, nationality, gender, age, disability, or sexual preference have a separate requirement called “exhausting administrative remedies” in addition to the statute of limitations. Exhaustion of administrative remedies means that there are separate state or federal requirements that must be completed before you can bring a discrimination lawsuit. These requirements govern the time in which you must file a discrimination lawsuit. Several statutes may apply to employment claims such as provisions of the Labor Code and California Business and Professions Code as well as the federal and state tort claims act. Each of these statutes may have its own filing deadline that you must consider.

What is the EEOC (Equal Employment Opportunity Commission)?

The EEOC is a federal agency. The EEOC assists in the administration and sometimes the adjudication of discrimination claims. The law governing discrimination claims is called Title VII. The purpose of filing charges with the EEOC is to assure timely notice to the employer of claims of discrimination (like a statute of limitations). Title VII actions cannot proceed in federal court unless discrimination charges are filed with the EEOC within a specific time limit after the allegedly unlawful employment practice “occurred.” There are certain exceptions to this rule but you should be mindful of the time limitations. If you are a federal employee or wish to be in federal court, you must file with the EEOC.

What is DFEH (Department of Fair Employment and Housing)?

California has a similar agency called the Department of Fair Employment and Housing (DFEH). The time limit for filing a claim with the DFEH is one year from the unlawful act. If you are not a federal employee and wish to file a claim of discrimination or harassment against your employer, you may file with the DFEH. By obtaining a right to sue or asking for an investigation from the DFEH, you will generally be allowed to file your lawsuit in state court.

Discrimination charges filed with either the EEOC or DFEH past the statutory time frame will generally not be considered by the courts. Generally, you cannot file a lawsuit alleging discrimination unless you have first filed a claim with either or both the EEOC or DFEH. The rules for timely filing and which agency to file with can be complex. The assistance of a lawyer can be important in deciding when or with whom to file a complaint.

What is an at-will employee?

In California (and, in most states), the general rule is that most employees may be fired at any time for any reason or no reason at all under what is known as the at-will employment doctrine.

Exceptions to the “at will” doctrine include Common Law Protections: California is particularly generous in its treatment of employees. California has the largest economy in the United States and the fifth-largest in the world.

  • California recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates the fundamental principles of public policy if an employee has a cause of action. In other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
  • The public policy must serve the interests of the public (i.e., protect the public from harm) rather than merely that of the individual (or company). Accordingly, an employee who reveals to his current employer that a co-worker is under investigation for embezzlement at another company is said to be serving only a private interest: the interest of the employer. Although the employee’s disclosure may be beneficial to most employers, and the employee is not protected from retaliation. Many of the exceptions are outlined in statutory provisions under California law, including the Department of Fair Employment and Housing, Worker’s Compensation, The Unruh Act, and many other statutory schemes to protect California Workers.
Have I been misclassified as an independent contractor?

Workers in many fields are misclassified as independent contractors when by law, they are employees who are entitled to minimum wage, overtime at the rate of time and one half, and having employers bear the cost of work-related expenses.

The misclassification of workers as contractors is common in industries such as truck drivers, delivery drivers, janitors, security guards, store delivery persons, and home health care providers such as nurses, home health aides, and various therapists and exotic dancers.

The test for who is an independent contractor is complex. Still, at a minimum, the independent contractor must have complete autonomy, work in a business different than the one he/she is doing work for and, be running their own independent business.

If you work in a job and are classified as an independent contractor and believe you may be misclassified, please call the Law Office of Andrea Cook & Associates.

How to get ready for a meeting with the lawyer you are thinking of hiring.

First, you should know that there is nothing special about meeting with a lawyer.  You can compare this initial consultation to asking your mechanic what is wrong with your car and how long will it take to fix it or if you are lucky enough to be mechanical, asking your plumber to diagnose your plumbing problems. Lawyers have some special skills and knowledge that allow them to solve legal problems.  Importantly, both the lawyer and the client have certain obligations that are triggered by their meeting.  These obligations include:

1. A lawyer has an absolute duty to keep everything you say to them confidential. This means that if you don’t disclose what you and the lawyer discuss, it remains a secret.

Your corresponding duty to the lawyer is to be truthful and accurate.  You don’t help yourself or your lawyer if you are not as accurate as you can be. If there is something you are not comfortable answering, better to explain this than to misrepresent a critical fact.

2. The lawyer or law firm you retain has an obligation to disclose all financial obligations or benefits they reasonably know may occur over the course of their representation of you. Sometimes, this is not clear at the beginning of a case.

Correspondingly, potential clients should understand that this is not science and that the costs and benefits for both the lawyer and the client may be a bit of a moving target. In any event, the financial arrangement with your lawyer should be crystal clear.  If the lawyer or law firm agrees to represent you and, you agree to be represented by them, all of this is contained in a fee agreement which should spell out the financial arrangement.

3. Undoubtedly, the lawyer will ask a LOT of questions. Being prepared to answer those questions will be helpful to you both. Take this opportunity to ask any questions you might have. 

4. What to bring to the first meeting:

    • The more clearly you tell your story, using whatever documentation you have, the better your lawyer can assess your case. If possible, consider making a brief timeline of events: this can help you remember details and clarifies the sequence of events as you explain it. Remember, your consultation is entirely confidential, and your attorney can best serve you if you are completely honest and forthcoming.
    • Bring any writings, photographs, or other materials you believe may corroborate or bolster your facts. Remember that success or failure of your case is very dependent on EVIDENCE.  Bring what you have. Be extremely careful to save emails, text and phone messages that are part of your story. These can be powerful evidence and can be persuasive in proving your version of the facts.
    • However, with this said, do not rely on documents, recordings or photographs which do not belong to you. You can’t take communications from work which are company property. Unlawfully obtained documents would not be admissible in support of your claim and your actions may be used by the employer in its defense against you. Do not secretly tape record a conversation without permission.  These laws differ from state to state and secret tape recordings are a criminal act in California.

5. What you discuss or evidence you have may be dependent of the kind of case you have. Consider assembling the materials we have identified below. You may not have access to all of these materials

    • Wrongful termination: In California, you cannot be terminated for unlawful reasons, including discrimination and retaliation. Consider whether you believe you were terminated because you are treated differently from people of other races, ethnicities, religions, genders, ages, and, or because you reported (to someone within your company or to a regulatory agency) problems at your place of employment.

Please bring any performance reviews, write-ups or disciplinary reports, a recent payroll stub, and any items you believe show that you were terminated for discriminatory or retaliatory reasons. These could be things like email chains, text messages, voice mails, videos, or memos you wrote or notes you took during specific incidents.

If you have been seen by any health care provider, including a psychologist or emergency room doctor, bring the names and phone numbers of those health care providers.

If you have an employee handbook or an employment contract in your possession, please bring them to your consultation.

Please give some thought to any witnesses you think may be important and what they might say.  If you have access to phone numbers and addresses, please bring them.

    • Discrimination: discrimination occurs when a business treats an individual or group of people differently from another group, based upon certain protected classes. Any materials which show how you were treated differently can be helpful. Things to think about are email chains, text messages, voice mails, videos, or memos you wrote or notes you took during specific incidents.  Also helpful is evidence related to your employment (dates of employment, rate of pay and any handbooks you may have.)  Always, consider: “who might be a witness?”
    • Retaliation: retaliation occurs when an employee is punished for filing a charge or complaint of discrimination, participating in an investigation or lawsuit, or opposing discrimination or violation of other regulations or laws. Bring things like email chains, text messages, voice mails, videos, or memos you wrote or notes you took during specific incidents. Bring documents you have that are rightfully in your possession, including handbooks, employment contracts, disciplinary reports, performance reviews, and a recent payroll stub.

We realize that that assembling all these materials can be daunting.  Do the best you can.  The most important part of your initial consultation is to establish a mutually trusting relationship with the lawyer that you are considering hiring.  They are (or should be) there to serve you and help you solve an important problem.

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Andrea Cook & Associates
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