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 Brandon, Esq. Your Own Question

Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1737
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Type Your California Employment Law Question Here...
Brandon, Esq. is online now
A new question is answered every 9 seconds

1st )I was just terminated after coming back from vacation.

Resolved Question:

1st )I was just terminated after coming back from vacation. The reason given was poor performance even though my restaurant was up $800,000 in the last 4 years. I was replaced by someone who's store over that same time period was down $250,000. Is this allowed? when obviously it wasn't poor performance

2nd) I also have 40 days of vacation time going back to 2007 (when the company had a use it or lose it policy) I was not compensated for those days at my termination. Basically I did not know what the law was concerning vacation and they took advantage of that
Submitted: 10 months ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 10 months ago.

Brandon, Esq. :

Hello and thank you for your question today.

Brandon, Esq. :

Are you online with me?

Brandon, Esq. :

Welcome to the chat

Brandon, Esq. :

First, let me say that I am terribly sorry to hear that you are in this situation. It is a shame when an employer makes a decision without legitimacy, especially when that decision is quite frankly wrong. However, that does not necessarily mean that the decision is unlawful. California is an at will employment state. This means that your employer is allowed to terminate your employment that does not violate your civil rights or is in breach of contract. Thus, if you are a union employee, or if you have an employment contract that says you must be fired for cause, then you might have legal recourse against them for terminating you. Additionally, if you believe the reason that you were terminated could be related to a protected category, such as your age (over 40), gender, race, religion, genetic information, pregnancy, national origin, creed, or disability, then the termination would be deemed wrongful and you would have a cause of action. In a situation like this, where it makes no legitimate sense to fire you, and replace you with someone who is not getting the job done, courts oftentimes look to information just like this when an allegation for discrimination is made.


 

Brandon, Esq. :

If you believe that the real reason this occurred could be related to a protected category, then you are going to want to file a claim with the DFEH or the EEOC.

Brandon, Esq. :

You can do that here:

Brandon, Esq. :

Or, if you would prefer, you can get an employment attorney in your area involved to help you.

Brandon, Esq. :

If you decide to hire an attorney a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys willing to take your case prior to selecting the one you feel most comfortable with.

Brandon, Esq. :

Other types of termination, even if wrong, are still legal. As a consequence, the only potential remaining option that you can pursue would be to file for unemployment benefits and claim, quite rightly, that you were terminated "without cause" and seek unemployment benefits. You would not be able to seek damages, but you would be able to contest the termination as being ultimately invalid.


 


 

Customer:

the person who replaced me is 24

Brandon, Esq. :

Are you over 40?

Customer:

yes 45

Brandon, Esq. :

Then it sounds like you would have a legitimate argument to say that the real reason this occurred was because of your age.

Customer:

how about my vacation pay situation

Brandon, Esq. :

A use it or loose it policy is not legal in California

Brandon, Esq. :

In California, vacation pay is another form of wages which vests as it is earned (in this context, "vests" means you are invested or endowed with rights in the wages). Accordingly, a policy that provides for the forfeiture of vacation pay that is not used by a specified date ("use it or lose it") is an illegal policy under California law and will not be recognized by the Labor Commissioner.

Customer:

the new manuaql for the company has a cap on days earned but the days I am discussing we did not hav e a cap policy in place

Customer:

there was no policy other then use it or lose it

Brandon, Esq. :

The problem here is that there is a four year statute of limitations on a claim like this

Brandon, Esq. :

So, you would be entitled to pay for every vacation day for the last 4 years

Customer:

so my time from 20072009 i cannot collect on

Brandon, Esq. :

that was "lost"

Brandon, Esq. :

Unfortunately, that is correct

Customer:

but the 1st part due to age i have something to go on

Brandon, Esq. :

Well, I should ask, when was the vacation deemed to have been lost

Brandon, Esq. :

Because the statute begins to run on the date the wages were due

Brandon, Esq. :

so you could technically have an argument that the wages were not due until termination

Brandon, Esq. :

So it really all depends on the exact language of the policy

Customer:

i dont understand 2007 i had 7 days coming used 2 and the rest were tossed out by the company

Brandon, Esq. :

So if you get 7 days in 2007, and the policy says you loose those days at the start of 2008, then the statute would have already run. However, if you got those days in 2007, and were only now informed that you lost those days, then you could argue that you would be due those days now, and not then.

Brandon, Esq. :

Does that make sense?

Customer:

beautiful thank you for all your help

Brandon, Esq. :

Not a problem. Have I fully answered your question today?

Customer:

yes i think so

Brandon, Esq. :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.


 

Customer:

I will give you an excellent service can I contact you at a latter date?

Brandon, Esq. :

If you ever need to ask for me specifically, please feel free to do so here:

Customer:

thank you

Brandon, Esq., Lawyer
Satisfied Customers: 1737
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and 2 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.