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Brandon M.
Brandon M., Counselor at Law
Category: California Employment Law
Satisfied Customers: 12237
Experience:  California licensed attorney
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Hi. I hired a temp.worker from Apple One. She worked for

Resolved Question:

Hi. I hired a temp.worker from Apple One. She worked for us for 3 weeks. She was not the right employee for us. We did not offer her the permanent position. She is now trying to sue us because she claims we did not hire her because she's pregnent. In the past, we have offered to hold a position open for a pregnent employee who was suitable for the job she was in. Our employees are all women of child bearing age. Her pregnency was not the issue at all, but we are afraid to fight this case because we are in California. Please advise.....
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Brandon M. replied 2 years ago.

Brandon M. :

Hello there.

Brandon M. :

Thank you for your question. I would like to know why the attorney with whom you consulted felt that this case could result in $100K of litigation. What sort of evidence does the temp employee have in her favor?

Customer:

The attorney we consulted with, felt that to defend this case would cost $100K by the time we had depo's

Brandon M. :

In which county is this case proceeding?

Customer:

Los Angeles

Customer:

The employee initially asked for $14K to settle, but our atty. felt that if we agreed to that, it would set the baseline too high in case we decided to defend it

Brandon M. :

Is the case proceeding in federal or state court?

Customer:

no. we offered $5000, and she turned it down

Brandon M. :

Ok, so a complaint has not yet been filed in court?

Customer:

no, just with the DEFH

Brandon M. :

Has the DEFH made a determination yet?

Customer:

no

Customer:

she asked for $14000 but our atty offered $1500 hoping to compromise in the middle somewhere

Brandon M. :

Does she have an attorney?

Customer:

her father is an attorney. we believe she is using him.

Customer:

the DEFH seems to be very much in her corner...this is California after all.

Brandon M. :

What evidence does she have to support her claim?

Customer:

she worked for us for 3 weeks

Customer:

she did not perform well

Customer:

she was a temp from Apple One

Customer:

our office manager had been telling her througout, that she was not communicating well,was not being assertive, was not asking questions....

Customer:

in her third week of working in our office, she announced that she was pregnent

Brandon M. :

Thank you, XXXXX XXXXX question is what evidence does she have to support her claim?

Customer:

she said she would be taking off for 3to 4 months

Customer:

we had not offered her the position

Customer:

we did tell the temp agency a few days later, that she was not a good fit

Customer:

because she was not communicative

Customer:

the employee now claims that we said she was a good worker because the office manager was encouraging at one point

Customer:

she has not denied that the negative feedback from the office manager took place

Customer:

i made an error earlier in our conversation: we did not offer her $5000, we offered her $1500

Customer:

this is the only "evidence" she has

Brandon M. :

I see.

Customer:

I copied it into one message to make it easier to read:she worked for us for 3 weeks





she did not perform well






she was a temp from Apple One






our office manager had been telling her througout, that she was not communicating well,was not being assertive, was not asking questions....






in her third week of working in our office, she announced that she was pregnent






she said she would be taking off for 3to 4 months






we had not offered her the position






we did tell the temp agency a few days later, that she was not a good fit






because she was not communicative






the employee now claims that we said she was a good worker because the office manager was encouraging at one point






she has not denied that the negative feedback from the office manager took place






i made an error earlier in our conversation: we did not offer her $5000, we offered her $1500






this is the only "evidence" she has



Brandon M. :

Her evidence is basically just the timing of it all, apparently. Would that be accurate to say?

Customer:

Yes

Customer:

We can prove that we offered to hold a position open for another pregnent employee in the past.

Customer:

We hire women of child bearing age. We are not afraid of pregnent women. She just wasn't the right fit for us.

Brandon M. :

How long ago were you alerted to the fact that a complaint had been filed?

Customer:

we thought that since she was a temporary worker, we were okay with not offering her a position

Customer:

sorry, i just saw your response

Customer:

my screen was scrolled up, and i've been waiting for your reply, but it was too low to see!

Customer:

we were alerted about a month ago

Brandon M. :

Well, I have a few thoughts.

Brandon M. :

First, it doesn't cost anything to file a complaint. It takes about five minutes to send an email making the allegation, followed by a phone call or two. The state does the rest.

Brandon M. :

You mentioned that her father is an attorney. Do you happen to know her father's name?

Customer:

no, we only have her married name

Customer:

would it help if we had that?

Brandon M. :

Do you know what kind of law he practices? I would look him up if I had his information.

Customer:

she told our attorney today, that she was consulting an attorney. it could be her dad or someone he referred her to...

Brandon M. :

Ok, if she had an attorney, you would be speaking to the attorney, not to her.

Customer:

she has not gotten an attorney yet.

Customer:

we are hoping that thee consultation

Customer:

will result in the atty advising her to settle...

Customer:

we'd like to settle if possible

Brandon M. :

It might be that she has consulted with an attorney, but it can't be that close of a relationship because any attorney with any level of involvement would not tell her to speak with your attorney, and would certainly not let her negotiate on her own. I am extremely skeptical that she has received any legal advice.

Brandon M. :

Except, she may have been advised to file a complaint with the DFEH. As I mentioned, it basically costs her nothing to do so.

Customer:

today, she told the DFEH that she wants to consult with an attty

Brandon M. :

You said that DFEH seems to be in her corner. Why do you say that?

Brandon M. :

As you know, there is a difference between wanting to consult with an attorney and actually paying to consult with an attorney.

Customer:

because he said that he felt that if her facts were accurate, the timing of our letting her go was not good

Customer:

she was a temp worker and we thought we were letting a temp go

Customer:

the previous candidate to this candidate was let go after 3 weeks as well, because she was not right for the position

Brandon M. :

But other than the timing of your letter her go, what are "her facts"?

Customer:

the previous candidate to this candidate was let go after 3 weeks as well, because she was not right for the position

Brandon M. :

Excuse me, I meant to ask, "other than the timing of your letting her go, what are 'her facts'?"

Customer:

there are no other facts

Brandon M. :

So really, whoever you spoke with at DFEH was really just saying that the timing looked bad and nothing more, correct?

Customer:

yes

Customer:

she thinks that

Customer:

we let her go because

Brandon M. :

The state and federal discrimination laws are designed to be used as a shield, not as a sword. They are suppose to create a level playing field--not to give an employee invincibility because they fall into a protected class.

Customer:

we told the temp agency that she was not a good editor

Brandon M. :

Here, you have an employee with a documented history of poor work performance. The person was a temp, as you said. You have a history of not discriminating against pregnant employees. You terminated the previous temp who was not pregnant under the same circumstances, etc. etc. etc. It is true that the timing is not good, but what else does she have? It is not illegal to fire a pregnant woman. It is merely illegal to fire a woman because she is pregnant. Those are different things.

Customer:

but we actually the temp agency that she was

Customer:

not a good fit because she lacked communication skills

Customer:

this is important because

Customer:

she told the DFEH that she believes that we claim to have terminated her

Customer:

because she was not a good editor, but we communicated to the temp agency

Brandon M. :

I can understand offering a pittance just to get rid of the case--that makes financial sense. But it is very possible that even she believes she doesn't have a case. People sometimes file these things just to get some leverage and make a quick buck. Most of the time, after the DFEH makes their decision, the case dies without anything being filed in court.

Customer:

that we were letting her go because she was not a good communicator and she lacked initiative

Customer:

and the temp agency sent us written confirmation to that effect in email and that they would look for a more outgoing employee

Brandon M. :

I don't know why the estimate was $100K for the attorney fees--maybe your attorney just wanted to set your expectations low.

Customer:

so her facts with the DFEH are wrong

Brandon M. :

As I said, most of the time, the case will simply die on its own. It is entirely possible that even she does not believe that her case has any merit.

Brandon M. :

Does that make sense?

Customer:

yes

Customer:

just a moment

Customer:

1. the pregnent woman we previously offered to hold the position for, was actually offered this position by the same people (office manager, owner, etc.), in the same office. however, the company name was changed about 8 months ago. in other words, it is now a new company, doing the exact same kind of work we have done for years

Customer:

while i agree with you that the case may die out at the DEFH, or that she may be willing to settle, if it did go to court, have you defended cases like this in the past?

Customer:

the pregnent woman we previously offered to hold the position for, was actually offered this position by the same people (office manager, owner, etc.), in the same office. however, the company name was changed about 8 months ago. in other words, it is now a new company, doing the exact same kind of work we have done for years

Customer:

the reason why i mention the facts above,

Customer:

is that we were a "different" company back then (2008), even though all of the personnel are the same as in 2008 and the location is the same

Customer:

so i'm not sure it could still be factored into OUR history?

Brandon M. :

Generally, all relevant information will be considered.

Customer:

since we have a different EIN (employer id number) today

Customer:

okay, that would be great

Brandon M. :

Great. Did you have any further questions this evening?

Customer:

while i agree with you that the case may die out at the DEFH, or that she may be willing to settle, if it did go to court, have you defended cases like this in the past?

Brandon M. :

Yes.

Customer:

how would you proceed with trying to settle this matter and/or trying to protect ourselves?

Brandon M. :

Because the nuances of every case are different, I am not in a position to tell you how to manage your specific case. However, if the complaining party does not have a defensible case, I will generally recommend offering no settlement.

Customer:

how can i get your contact info?

Brandon M. :

I am actually prohibited from contacting customers except through the website as one of my terms of service (lest we steal away their business, I suppose). However, you are free to contact me through the website for any future questions that you may have.

Customer:

is Brandon M. your real name?

Brandon M. :

Actually, they gave me that name. My real name is XXXXX XXXXX my last initial is "M".

Customer:

what city are you in?

Brandon M. :

Because my contact information can be found on calbar, avvo, or any other number of websites, I am not permitted to give out additional information on my name. I am in Sacramento County.

Customer:

thanks very much. i found your opinions to be excellent.

Brandon M. :

I appreciate those words, thank you.

Brandon M. :

Let me know if further clarification is needed, and please keep in mind that the experts are not credited for unaccepted answers; even where every problem cannot be solved, my hope is that you can at least feel confident in your knowledge. Please remember to click accept once you are finished. Thank you.

Customer:

Okay. Please make sure my questions do not show up online since I mentioned "Apple One", thinking our conversation was confidential. Actually this conversation should be confidential anyway. Is it?

Brandon M. :

I can mark the conversation as private, if you so desire.

Customer:

Thank you. Then other people will not be able to see it online, right?

Brandon M. :

Correct.

Brandon M. :

With your permission, I will have it marked as private as soon as you click accept or close out for the evening.

Brandon M. :

Once I mark it as private, it is somewhat difficult to get back in.

Brandon M. :

So make a copy if there is anything that you would like saved--it is easier than trying to come back to the question.

Customer:

okay....i will speak with you soon...thanks for making it private

Brandon M., Counselor at Law
Satisfied Customers: 12237
Experience: California licensed attorney
Brandon M. and other California Employment Law Specialists are ready to help you

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