How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask LawTalk Your Own Question

LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27880
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
Type Your California Employment Law Question Here...
LawTalk is online now
A new question is answered every 9 seconds

Hi. Im wondering if you can please provide some answers re:

Resolved Question:

Hi. I'm wondering if you can please provide some answers re: my work situation. I've been working for a high tech corporation in the bay area (for the past 5 years) but have a 3rd party that i'm employed through. I have 20 years of experience. I'm a full-time contractor + I get paid through this third party (i file a w2 form) + receive health benefits (but no paid vacations, no sick days, no raise increase). I believe that I'm an 'at-will' employee meaning that i or the company can terminate my employment at anytime without advanced notice.

There has been some restructuring in my department in the past year and my job responsibilities have been changing greatly. They now outsource a lot of the creative work and I now play more of a support role. These changes do not necessarily play to my strengths and I now feel that I'm getting pushed out of my position. My supervisors/traffic people do not readily provide the information I need to perform my job successfully. They give me information last minute, hold back information, or give me multiple projects when I have a deadline so now i'm missing deadlines and/or my train. Sometimes verbal directives given to me contradict directives given to me in e-mails so I'm not sure which to follow. I feel that I'm receiving more scrutiny from supervisors and even co-workers which is effecting my confidence and ability to focus/perform.

Over the years, I've received positive feedback on both my performance and dedication. I've always was available to work over time/on weekends. When I've asked my supervisor if she's happy with my performance and if my contract would be renewed, she is supportive/ is all smiles. The reality feels contrary. Question 1: If my performance is now suffering, can they fire me and deny me unemployment benefits?

The 3rd party that i'm employed through, announced 2 weeks ago that they are changing their company name. They all asked all of their contractors to sign a new contract which I just received two days ago. They gave us a deadline to sign the contract by tomorrow. I've read it over myself but but would more comfortable (especially with how work has been feeling lately) if I could have a lawyer review it before I sign it. My second question is can they deny my continued employment if I do not sign the contract by the deadline that they assigned? And if I sign the contract and they decide to fire me, does the fact that they are technically a new company, jeopardize my abiltiy to collect unemployment benefits and or continued heath benefits (cobra coverage)? Any feed back would be greatly appreciated. Thanks in advanced for sharing your knowledge/expertise.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  LawTalk replied 2 years ago.
Good morning,

I'm sorry to hear of the situation.

Please understand that we are not in a position to review entire contracts---because that would arguably make us your attorney---and despite the fact that I am a licensed CA attorney with nearly 3 decades of experience, including employment law and employment litigation---JustAnswer does not allow us to provide representation.

What I can do is explain the law to you as it may apply to selected language in the agreement that you may have questions about. Additionally, I, can respond to all of your other concerns you have stated.

Before I do that though, I need to know whether that would be satisfactory with you or not---because if you demand a complete legal review of your agreement, then this is not the forum for you, and as I do not want to spend a lot of time if you are simply going to be dissatisfied because you didn't get everything you wanted.

Please let me know your thoughts.

Doug
Customer: replied 2 years ago.
Hi Doug, Thanks for getting back to me. My plan is to find a lawyer + hopefully have someone review my contract over the weekend. Since I have been given a deadline today to sign that contract, I just need to know some of my rights so I can feel more prepared today when I go into the office today. So yes, I would be satisified at this point, just to have some information. Question 1: Can the third party deny my continued employment if I do not sign their new contract with their new company name by the deadline that they assigned? (I have the distinct feeling that they will demand that I do). Question 2: If my performance is now suffering, can they fire me and deny me unemployment benefits? I've been with the company 5 years. I even xmas cards from direct supervisor and creative director thanking me + mentioning that the success of their programs is due in part to my creativity + diligence. Question 3: My reputation/references. Can they give bad references? Question 4: Portfolio samples. Can they legally deny me access to acquiring samples of jobs that I've contributed to? Question 5: If I sign the contract and they decide to fire me, does the fact that they are technically a new company, have any bearing on my abiltiy to collect unemployment benefits and/or continued heath benefits (cobra coverage)? I find it odd that they are even changing their name. Question 6: If I decide not to renew my contract, is there a possibility that I can collect unemployment and/or cobra coverage? Please let me know if you have any insights to share. A prompt reply would be greatly appreciated. Thanks again, Doug.
Expert:  LawTalk replied 2 years ago.
Good morning,

Thanks for the additional information and your specific inquiries.

You wrote:
Question 1: Can the third party deny my continued employment if I do not sign their new contract with their new company name by the deadline that they assigned? (I have the distinct feeling that they will demand that I do).

Unless you have a written contract of employment with your employer, you are considered an employee-at-will. This means that there is likely little protection afforded you relating to unreasonable supervisors/bosses, as well as the typical workplace politics and drama which can be so troublesome.

In CA, employees are presumed to be "at will." At-will employees may be terminated for any reason—at any time, even a mistaken reason, they can have their hours or pay decreased and they can suffer a cut in their benefits, so long as it's not illegal or unlawfully discriminatory. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract. In your state, an employment relationship is at-will unless there is a defined duration for the employment contract or if the contract permits termination by the employer only under specified circumstances.

Unlawful discrimination would include an employer discriminating based upon a person’s Ethnicity, Color, Religion, National Origin, Gender or Disability.

So, yes, it is possible for the employer to let you go if you do not agree to sign the new agreement. However, with a name change for the company and a possible change in ownership, a new agreement is to be expected and unless it is significantly different from the original agreement you have, there may be little reason for concern.

Question 2: If my performance is now suffering, can they fire me and deny me unemployment benefits? I've been with the company 5 years. I even xmas cards from direct supervisor and creative director thanking me + mentioning that the success of their programs is due in part to my creativity + diligence. As you can be let go for any reason---performance issued included---they can let you go. However, simply stating that your performance has dropped is not automatically considered good cause for termination. A lot will depend on the circumstances and you have a lot of facts to support the specific reasons for the apparent drop in performance. Those facts will work to your benefit by providing proof that your failures---to the extent that they exist---are cause not by your motivation or lack of skill or determination, but by the ever-changing dictates and policies of the employer. I believe that you would likely be granted unemployment from the EDD.

Question 3: My reputation/references. Can they give bad references? For a former employer to provide false information would be actionable as defamation, and with the litigious nature of so many folks in CA these days, most employers refuse to provide references of any kind aside from dates of employment an answering the simple question-- Are you eligible for rehire with the company. But legally, a company may provide a bad reference---but they must do so carefully so as not to generate a lawsuit by the disgruntled former employee.

Question 4: Portfolio samples. Can they legally deny me access to acquiring samples of jobs that I've contributed to? As I have no idea what you do I can't determine whether the work you are talking about is copyrighted by the company or may constitute trade secret or company property to which you have no right when you leave. I would suggest that so long as you do NOT use examples for future work, and only as an illustration of what you are capable of---and so long as it does not compromise the present employer in terms of trade secrets---then you are unlikely to get in trouble over possessing a few samples of your work.

Question 5: If I sign the contract and they decide to fire me, does the fact that they are technically a new company, have any bearing on my ability to collect unemployment benefits and/or continued heath benefits (cobra coverage)? I find it odd that they are even changing their name. As unemployment looks at the past 4 quarters of your employment and your benefits are based on all the employees you worked for in that time period---then change in company name/ownership will not effect your ability to get unemployment. When a company changes hands---so long as the employees and the functions of the business remain essentially the same, then COBRA would continue to apply to the new company as would the Family Medical Leave Act and other protections given workers in CA. The name change or new ownership is simply treated as a continuing operation. Now, it the company sold to a buyer that instituted changes from manufacturing airplane parts to th building of guitars---replaced 2/3 of the workers with new ones---then it would be seen as a new company for COBRA and FMLA purposes.

A name change can be made for many reasons and it need not signify anything in terms of a change in the company structure itself, but may be primarily a marketing strategy.

Also, keep in mind that CA law generally prohibits non-compete agreements---making them illegal. So if there is non-compete language in the agreement you are looking at, you may generally ignore it as unenforceable. What is enforceable is an agreement that you will not solicit employees after you leave, that you will not use proprietary information belonging to the company and that you will not divulge trade secrets. That is typical of these agreements and is enforceable.

I hope that you found my answer informative, that you are accepting of my efforts and that you will rate my efforts based on the knowledge I have provided to you.

I wish you the best in 2012.

Thank you.

Doug
Customer: replied 2 years ago.
Hi Doug,

This information is very helpful. One last question: if I decide not to renew my contract, can I still be entitled to the continuation of my health insurance (pay for cobra) through the third party and/or is it possible for me to collect unemployment?

Thanks.
Expert:  LawTalk replied 2 years ago.
Good morning,

Provided that the company, as you have suggested is merely changing name and possibly owners---but will continue with the same functions and benefits for employees, then yes, if you choose to terminate voluntary, you will be eligible for your COBRA benefits. The sole exception would be in the event that the company chooses not to offer medical benefits to the employees. Because COBRA is essentially the same coverage and same policy as you are getting now under your employer---if you employer ceases to have a health policy contract, then you and all other employees, past or present, would lose coverage. That doesn't sound like it is likely to happen with this change.

As for unemployment, there are very few grounds for actually voluntarily terminating employment---including not renewing a contract---that allow for unemployment---you would have to prove that your quitting/non-renewing was justified. If you choose to renew you almost certainly will not be eligible for unemployment.

Justification in quitting your job which might be persuasive to an Unemployment Insurance Appeals panel would include:

  1. Sexual or other harassment
  2. Needing to move with a spouse or dependent child to another place of residence
  3. Discrimination (Ethnicity, Color, Religion, National Origin, Age, Sex and Disability)
  4. Working conditions that endanger your health or safety
  5. Major changes in the terms and conditions of your job affecting wages or salary
  6. Excessive overtime or an employer’s refusal to pay for overtime work
  7. Major changes in work duties
  8. Difficult relations with a supervisor, for which you are not primarily responsible
  9. Your employer is doing things which break the law
  10. Pressure from your employer or fellow workers to quit your job
I hope that you found my answer informative, that you are accepting of my efforts and that you will rate my efforts based on the knowledge I have provided to you.

I wish you the best in 2012.

Thank you.

Doug
Customer: replied 2 years ago.
Please clarify: if I renew my contract, then they fire me or did you mean if then i decide to quit, I would not be eligible for unemployment?

That will be my last question. Thanks for the extensive explanations. Great insight. It's helpful to know my rights.
Expert:  LawTalk replied 2 years ago.
You wrote: if I decide not to renew my contract

My last answer regarding unemployment was in response to that specific situation.

If you renew the contract and are fired---then my previous statement would be most applicable::
"However, simply stating that your performance has dropped is not automatically considered good cause for termination. A lot will depend on the circumstances and you have a lot of facts to support the specific reasons for the apparent drop in performance. Those facts will work to your benefit by providing proof that your failures---to the extent that they exist---are cause not by your motivation or lack of skill or determination, but by the ever-changing dictates and policies of the employer. I believe that you would likely be granted unemployment from the EDD."

Doug
LawTalk, Attorney
Satisfied Customers: 27880
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    912
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    912
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    827
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    320
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3098
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    20
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.