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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7141
Experience:  Significant experience in all areas of employment law.
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My employer made an error on my paycheck, and took several

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My employer made an error on my paycheck, and took several days to correct the problem. I informed her of the labor laws regarding incorrect paychecks and the penalties involved. I asked her to rectify the situation, and reimburse me for the penalties I was owed or I would have to file a claim with the department of labor. Less than 1 week later (yesterday) I was terminated from my employment for "having a hostile attitude" and for allegedly "refusing services to clients" (I am a hairstylist) which was completely untrue. I was never reimbursed for the penalties, and feel I was terminated for having informed her of my rights. Is there anything I can do?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 11 months ago.

Andrea,

Thank you for your question. I am so sorry to hear that you were let go.

As I believe I noted in my answer to your previous question, it is illegal for an employer to take any adverse employment action against an employee in retaliation for them asserting their rights under the Labor Code.

Retaliation can be hard to prove, but in your case we have what lawyers call a strong "temporal nexus" between termination and your efforts to enforce your wage rights just a week before. This close temporal proxmity (the "temporal nexus") creates a strong presumption that you were fired for this improper reason and that any stated basis for termination is no more than a pretense.

Thus, an individual in your circumstance has a strong claim for wrongful termination, entitling you to damages in the form of lost wages. Many attorneys can assist with this sort of claim on a pure contingnecy fee basis. If you don't know, a contingency fee arrangement is one in which the attorney receives a portion of the client's settlement or award as his payment, typically 1/3 of the total amount. If there is no recovery, the attorney does not get paid. The client never pays until the settlement or award is obtained (except perhaps to cover the filing costs for his claim).

To locate an attorney who can represent you in asserting this claim against your employer, see here: http://www.cela.org/?page=4

As always, please feel free to let me know if you have any further concerns. If this answers your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Best wishes moving forward.

Patrick, Esq., Lawyer
Satisfied Customers: 7141
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.
Is there a way to handle this without an attorney, as in can I file a claim through the department of labor, and does this differ from unemployment benefits?
Expert:  Patrick, Esq. replied 11 months ago.
Andrea,

Thanks for your reply.

Yes, you can bring a retaliation claim through the DLSE and can do so without the assistance of an attorney. However, I generally advise people to proceed with a lawsuit in civil court (and retain an attorney) because claims for retaliation are highly fact-intensive and better "fleshed out" through the discovery process that is only available to litigants in civil court. Moreover, if you obtain a judgment in your favor through the DLSE, your former employer can simply appeal your judgment in civil court, and then you are back where you would have been had you started there yourself.

Of course, the DLSE route also has its advantages. You don't have to pay an attorney or a filing fee. However, the DLSE is also not your personal advocate--they are a neutral government agency essentially "investigating" your claim, so you won't receive the sort of aggressive and highly personalized representation that you would in court with a lawyer. These are all things to consider in deciding how you want to proceed moving forward, but the DLSE is certainly an option for this kind of claim.

All of this is completely separate from unemployment benefits, which have nothing to do with the legal "wrongfulness" of your termination. You will likely be eligible for unemployment benefits unless your employer can prove that you were fired for willful misconduct.

I hope this helps. Please let me know if you require any further clarification.
Patrick, Esq., Lawyer
Satisfied Customers: 7141
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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