Practice Areas and Legal Definitions

Labor Laws:
Historically, labor laws have focused on such matters as eliminating unsafe workplace conditions, securing a living wage for employees, and eliminating, or at least, tempering the strife that often occurs between employee and employers.  Since the appearance of organized labor, laws have established collective bargaining rights, and have sought to prevent either employers or employees, individually or through associations or unions, from engaging in unfair labor practices.  It is well-established, by various statutes, that both sides to a labor dispute are legally required to engage in good faith collective bargaining.  Modern labor laws also address such complex and often emotionally charged issues as strikes, picketing, mutual injunctive relief and lockouts.

Labor and Employment attorneys can help employers with the following:

• Reviewing client employee handbooks, manuals and policy statements
• Assisting with federal and state wage and hour law issues and claims
• Representing employers before the Equal Employment Opportunity Commission (EEOC) and state human rights agencies
• Providing advice on issues involving National Labor Relations Board (NLRB) representation and elections including campaign assistance
• Representing employers in unfair labor practice proceedings before the National Labor Relations Board and state labor agencies
• Providing representation for grievance and arbitration hearings under collective bargaining agreements
• Collective bargaining on behalf of clients including strategic planning and acting as spokesperson
• Counseling on issues related to strikes or lockouts and providing related litigation support

Employment Law:
Employment law is a well-established body of statutes and judicial decisions covering all rights and obligations within the employer-employee relationship, including current employees, job applicants and former employees.  It covers a wide range of legal issues, ranging from employment discrimination and wrongful termination to matters involving wages and workplace safety.  Many employment law issues are governed by applicable federal and state employment law, but a number of issues are determined according to basic contract law.

Employee Rights:
All employees have basic rights arising from both state and federal laws.  Some of these rights include:  the right not to be subjected to discrimination on the basis of race, national origin, skin color, gender, pregnancy, religious beliefs, disability, age, and in some places, marital status or sexual orientation; the right to a workplace free of harassment; the right to be paid at least the minimum wage as provided by federal or state law; the right to overtime wages as provided by federal or state law; the right to a safe workplace and the right to take leave to care for a personal or family member's serious illness, or following the birth or adoption of a child.

Employment Discrimination:
Discrimination generally occurs when an employee is intentionally treated differently because of race, color, religion, national origin, disability, gender, age, and in some states, sexual orientation.  Employment discrimination claims may be prosecuted under various state and federal statutes.  Even if the employee’s evidence is sufficient to show discrimination, an employer may be able to justify a particular job action by demonstrating that such treatment arose out of business necessity, or that a legitimate job qualification required consideration of factors that had an unintentional discriminatory effect.  When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer’s justification, was the true reason for the action.

Age Discrimination:
It is unlawful for an employer, employment agency or labor union to discriminate in employment on the basis of age.  This includes refusing to hire an individual or firing an employee.  It also includes an individual’s compensation, the terms, conditions, and privileges of his or her employment, and all employee benefits.

Disability Discrimination:
Both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 protect individuals with disabilities from employment discrimination.  An individual with a disability is defined as someone who has a physical or mental impairment that substantially limits a major life activity, has a record of having such a physical or mental impairment, or is regarded as having such impairment.  The term is broadly defined to include any physiological, mental or psychologically-based impairment, but it does not include mere physical characteristics or cultural, environmental, or economic impairment—the impairment must cause a substantial limitation to a major life activity.  Temporary conditions, such as a broken arm or the flu, would not be considered substantial limitations amounting to a disability entitled to statutory protection.

Wrongful Termination:
Termination of employment cannot be classified as "Wrongful Termination" unless it is in violation of some fundamental public policy, as set forth in a state or federal statute, regulation or constitutional provision.  Examples of Wrongful Termination include situations where:

• An employee is discharged for failure to comply with an order to perform an act that violates some law, ordinance or regulation, or
• An employee is discharged in retaliation for complaints about conduct by the employer that he or she believes to be unlawful, e.g., failure to pay overtime, or failure to comply with safety regulations.

Sexual Harassment:
Sexual harassment is any unwanted and unwelcome sexual behavior.  It involves a broad range of conduct, including such verbal harassment as derogatory comments, explicit sexual comments and descriptions of sexual exploits, leering or requesting sexual favors.  The term also describes physical harassment, ranging from inappropriate touching to outright sexual assault. In order to be classified as illegal the conduct in question must be both unwelcome and offensive to the victim.

Sexual harassment is a form of sexual discrimination, prohibited in employment settings under Title VII of the Civil Rights Act of 1964.  Title IX of the 1972 Education Act makes sexual harassment in schools or other educational settings unlawful.  The Federal Fair Housing Act also provides protection against sexual harassment, and most states have enacted legislation making it unlawful.

Overtime Compensation:
Under both State and Federal law employers are required to pay additional compensation to eligible employees who work more than forty hours during any seven-day period.  For every hour over forty hours in any given workweek the employer must pay the eligible employee at least one and one-half times the employee's ordinary hourly rate.

Defamation (Libel & Slander):
Defamation is the communication of a false and unprivileged statement that exposes another to hatred, contempt or ridicule, or which causes him or her to be shunned or avoided, or which has a tendency to injure him or her in his or her trade or occupation.  The defamatory statement must be communicated to someone other than the person to whom it refers and it must refer to a living person.

Defamation communicated verbally it is called "Slander," but if it is communicated in writing, it is called "Libel".  As a general rule it is easier to recover damages in a lawsuit for libel than in a slander lawsuit.  Most defamation litigation in the employment arena concerns the employer’s “qualified privilege” to defame.  Under this concept, employers and former employers are often protected from liability for defaming employees or former employees.  By its very definition, however, the privilege is “qualified,” and not “absolute”.  It is generally limited to situations in which the employer or former employer is making a good faith communication of information to someone who has a legitimate interest in receiving it.  A good example of this is a former employer’s good faith response to a new or prospective employer’s inquiry about the job performance of a former employee.  Generally speaking, even if the information given is false and damaging and would otherwise give rise to a defamation lawsuit, it will be protected under the “qualified” privilege.

If the communication exceeds the scope of the privilege, the privilege is not available.  For example, if the communication to your new or prospective employer is not in response to an inquiry, but a voluntary and unsolicited communication, liability for defamation will attach if the information is untrue.  Even if the communication is made in response to prospective employer’s inquiry, false and damaging information will not be protected by the privilege if it is made with knowledge or reckless disregard of its falsity, or with the intent to cause injury to the former employee.  It is important to remember that however damaging it may be, a truthful statement cannot form the basis of a defamation lawsuit.  This legal truism is often expressed in the phrase:  "The Truth is a complete defense to a defamation action".

Severance Agreements:
A severance agreement is a form of settlement agreement under which an aggrieved employee agrees to accept an agreed sum of money in exchange for, among other things, abandoning all claims against the employer.  Where it can be negotiated, a severance agreement saves money and aggravation for both sides. Severance agreements commonly include such provisions as "mutual non-disclosure of terms," an agreement that the employee will not compete against the employer, and that neither the employer nor the employee will make negative comments about the other.

Trade Secrets Agreements:
Employment contracts frequently contain provisions for the protection of the employer’s “trade secrets”.  These may range from customer data of one kind or another, to company designs, or even “secret recipes”.  Typically, the Trade Secrets clause of an employment contract will provide for “liquidated” damages in the event of disclosure of the information.  Liquidated damages are a set dollar figure agreed-upon in advance, to be paid in the event the contract clause is violated.

Non-competition Agreements:
Non-competition agreements are provisions contained within an employment contract which restrict the activities of an employee after leaving the service of the company.  Courts treat non-competition agreements with suspicion—with an eye toward preventing unnecessary and unreasonable interference with a person’s livelihood after severance of the employer/employee relationship.

The Courts will often decline to enforce “unreasonable” non-competition agreements.  A non-competition clause in the agreement under which a used car lot employs an auto mechanic will likely be summarily rejected by the court as unreasonable.  The agreement must be reasonable in duration.  A non-competition agreement barring the sales manager of a used car lot from engaging in the used car business for the rest of his or her life, or for 50 years, would probably be denied enforcement, while one with a 2-year term might well be enforced.  Non-competition agreements must be reasonable in the area covered.  If the agreement precludes the sales manager from engaging in the used car business anywhere in North America, it will almost certainly be denied enforcement as unreasonable.  If the area is limited to Los Angeles, for example, it would probably withstand court scrutiny.

Whistleblower Claims:
Whistleblower Claims involve employer retaliation, sometimes to the extent of Wrongful Termination, against an employee who reports the improper or unlawful conduct of another employee or of management itself to government authorities.  It is illegal for an employer to retaliate against a “whistleblower.”

Administrative Law:
Administrative Law is a system of justice outside the judicial system that is designed to bring resolution to conflicts arising within a detailed and technical structure of regulations.  Administrative Law Courts have a reputation for resolving issues with greater speed and efficiency than the judicial system.  Final Administrative Law decisions can be challenged in the Courts, but not until all administrative remedies have been exhausted.  Final Administrative Law decisions can also be converted to Court Judgments and then enforced by any of the traditional remedies available for the enforcement of civil judgments.

Injunctions:
Injunctions are a type of Court Order that either requires or prohibits specified conduct or behavior.  Injunctions are remedies frequently used in employment cases.  They involve such situations as injunctions requiring striking public employees to return to work, or injunctions requiring someone to stop engaging in an unlawful employment practice.  Willful failure to comply with an injunction can lead to a citation for contempt of court, and can result in significant money sanctions or even time in jail for the purpose of coercing compliance.

Employment Policy Manuals & Employee Handbooks:
An extraordinarily high percentage of Employment Law conflicts arise because there simply is no established company policy on a particular issue or the existing policy is either unknown or poorly understood.  Competent Employment Law counsel can help draft and put together a company policy manual that is both comprehensive and understandable, and an employee handbook that leaves no doubt as to what is expected from each employee, and what he or she can expect from the company.

Preparation and presentation of employee/management classes covering California Sexual Harassment & Employment Discrimination Issues:
Most Sexual Harassment and Employment Discrimination cases these days are the result of ignorance of and lack of sensitivity to these issues at various levels of management.  Arranging for formal classes concerning these matters can be both expensive and inconvenient, but the results of employee/management education about these matters will usually pay enormous dividends in terms of smooth employer/employee relations, and also in the peace of mind associated with avoiding expensive litigation and exposure to civil liability.

If you or someone you know in the Los Angeles area or throughout Southern California needs the legal assistance of an experienced Los Angeles Labor and Employment Attorney, call Roxanne Davis today at 866-611-3257, or complete the contact form provided on this site to schedule your initial consultation.

 

If you or someone you know in the Los Angeles area or throughout Southern California needs the legal assistance of an experienced Los Angeles Labor and Employment Attorney, call Roxanne Davis today at 866-611-3257, or complete the contact form provided on this site to schedule your initial consultation.

ADDRESS OF THE FIRM:
Davis*Gavsie, PLC
100 Wilshire Boulevard, Suite 2040
Santa Monica, CA 90401
Telephone: 866-611-3257
Fax: 310-899-2081

MEMBERS OF THE FIRM:

Roxanne A. Davis
Roxanne A. Davis has been practicing in Los Angeles, California, specializing in labor and employment law, for over 19 years. Roxanne Davis obtained her B.A. from New York University with honors. She received her J.D. from the University of Southern California Law Center and M.A. in International Relations from the University of Southern California. Ms. Davis is admitted to practice law in state and federal California courts.

Ms. Davis spent 5 years of her career working as an attorney with one of the largest labor and employment law firms in the country representing management, Jackson, Lewis, Schnitzler & Krupman. Over 16 years ago, she established her own practice in which she represents individuals and employers, in matters involving wrongful termination, discrimination and sexual harassment, among other issues. The varied demands of her practice include litigating claims of wrongful discharge, unlawful harassment, discrimination, wage and hour issues, mediation, negotiating employment contracts and separation agreements and more.

For businesses, Ms. Davis also advises on various employment issues with an aim toward prevention of personnel problems and lawsuits. Such matters include preparing company policies and procedures, Employee Handbooks and management training. She also investigates discrimination and harassment charges, represents employers in Federal Equal Employment Opportunity Commission ("EEOC") investigations, California Department of Fair Employment and Housing ("DFEH") investigations, among other things.

In addition, Ms. Davis speaks at seminars on employment law and contributes to legal publications.

RECENT PUBLICATIONS & PRESENTATIONS:

• 2002 Continuing Education of the Bar ("CEB") Presentation- "Fundamentals of Wrongful Employment Termination Practice," including:
  What constitutes sexual harassment
  Who is liable for sexual harassment
  Proving sexual harassment
  Investigations of sexual harassment complaints
  Other Employee Rights Statutes & State Statutes
• 2002 Los Angeles County Bar Association ("LACBA") Annual Labor and Employment Law Symposium
•  "Have I Got You Covered? Insurance Coverage Issues and Strategies in Employment Cases"
• California Employment Lawyers Association ("CELA") Annual Conference 2002 - "Plaintiff's Secret Weapons: The New & Improved Arsenal"
• November 2002 - Civil Litigation Reporter (published by CEB) "Employment Litigation" analyzing a recent 9th Circuit Court of Appeals decision regarding Title VII claims and sexual orientation discrimination
• 2000 CEB Presentation- "Fundamentals of Wrongful Employment Termination Practice"
• Successfully argued a case before the Ninth Circuit Court of Appeals establishing an airline employee's right to sue his or her employer for wrongful discharge because the employee engaged in union-organizing activities
• Attends and teaches seminars on recent developments in the employment law field, frequently speaking to groups of lawyers, Human Resource professionals, managers, LACBA, CEB, American Bar Association (ABA), CELA and in recent years, to insurance professionals at the annual International Risk Insurance Management Society Conference (RIMS) and other interested individuals on panels concerning issues relating to Employment Law and Litigation
• Continuing Education of the Bar's Advanced Course of Study: 1999 Employment Litigation
• Co-authored the 1997 edition of Wrongful Employment Termination Practice, published by CEB.

KEY PROFESSIONAL ACCOMPLISHMENTS:

• 2002 - Won summary judgment on behalf of the defense in a case alleging sexual harassment and physical disability discrimination
• 2002 - Won a summary judgment motion on behalf of a plaintiff in a case of disability discrimination and retaliation for violation of the California Family Rights Act
• Settled numerous cases

PROFESSIONAL ORGANIZATION PARTICIPATION:

• Member, Executive Committee, Labor and Employment Law Section, Los Angeles County Bar Association ("LACBA")
• Member, Symposium Committee, Labor and Employment Law Section, LACBA
• Co-Chair, Labor and Employment Law Section, Beverly Hills Bar Association ("BHBA")
• Member, National Employment Lawyers' Association ("NELA")
• Member, California Employment Lawyers' Association ("CELA")

VOLUNTEER ACTIVITIES:

• Ms. Davis also contributes her time pro bono to "Volunteers in Parole" (VIP), a mentoring program for lawyers and juvenile wards of the State of California, and contributes time to Los Angeles Small Claims and Traffic Courts.

CAOC Consumer Attorney of the Year Nominees

JAMES STEVENS V. VONS
October 2006

James Stevens was employed by Vons supermarkets for 26 years as an Inventory Control Clerk. After complaining to management about ongoing sexual harassment by a female supervisor, he was transferred to a less desirable store. Mr. Stevens filed a complaint with the California Department of Fair Employment and Housing (DFEH). Vons lied to the DFEH, and the DFEH closed its file.

The company then falsely accused Mr. Stevens of donating water and soda to a church that fed the homeless and fired him.

On October 27, 2006, after a 6-week trial, the jury in Simi Valley awarded Mr. Stevens $1.67 million in compensatory damages and over $16 million in punitive damages. The jury sent a clear message that a company must respect and respond to an employee who complains about unlawful harassment on the job, not retaliate against and fire them.

Davis*Gavsie, PLC specializes in representing employees as well as employers in workplace discrimination and unlawful harassment cases.

Click here to watch Roxanne Davis and Nathan Goldberg discuss Headline Legal News: James Stevens v. VONS

Elizondo v. Secretary of the U.S. Dept of Navy - 9th Circuit Argument

My client, John Elizondo, was a 20-year retired Marine and a 5-year civilian employee of the U.S. Dept of Navy. He was Hispanic, and his boss used words like "spic" and "beaner" against him and others.

When he started to stand up to her and resist the mistreatment, she set him up with bogus reasons and fired him. As a federal employee, he had to jump thru several hoops before he could file a lawsuit in federal district court. He had to put on a case before the Merit Systems Protection Board. Then, he had to go thru several other steps (petition for review and file with the EEOC) before he filed his lawsuit. After he went thru all those steps, the district court threw out the case saying they didn't have jurisdiction because Mr. Elizondo did not present "direct evidence" of discrimination (i.e., he didn't tell the MSPB that his boss used those discriminatory, derogatory terms - "spic," "beaner").

We appealed and said the district court held Mr. Elizondo to a very high and wrong standard - he was not required to present "direct evidence", just some evidence of discrimination and that the reasons given for his termination were false (pretext for discrimination).

Click Here to hear Roxanne Davis arguing Elizondo v. Secretary of the U.S. Dept of Navy before the 9th Circuit Court of Appeals. February 4, 2008.

• $475,000 Separation Agreement in Sexual Harassment case
• $250,000 Settlement in Sexual Harassment case
• $250,000 Settlement in Retaliation for Protesting Sexual Harassment and Sex Discrimination case
• $225,000 Settlement in Race Discrimination case
• $200,000 Settlement in Race/National Origin Discrimination case against a government entity
• $150,000 Settlement in Sexual Harassment and Retaliation for Reporting Sexual Harassment case
• $150,000 Separation Package in Age Discrimination case
• $135,000 Settlement in Retaliation for Reporting Unsafe/Unhealthful Working Conditions at healthcare facility
• Won Judgment for Defense in Sexual Harassment and Disability Discrimination case; $11,364 in costs awarded to Defendants against Plaintiff
• Won Jury Verdict in Defense of an Employee sued by Employer for Misappropriation of Records and related claims

Frequently Asked Questions

What is employment discrimination?
Discrimination generally occurs when an employee is intentionally treated differently because of the employee's race, color, religion, national origin, disability, medical condition (cancer), gender, sexual orientation, marital status or age (over 40).

To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs to a protected class. This may be shown by direct (clear words, pictures, documents or circumstantial evidence.)

Even if the employee's evidence is sufficient to show discrimination, an employer may be able to justify this action by proving that there was a business necessity for it or that a legitimate job qualification required consideration of a factor that had an unintentional discriminatory effect. When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer's justification, was the true reason for the action.

What is harassment?
"Harassment" is a pattern of speech (verbal) or conduct (physical action) that is based on one's race, religion, sex, national origin, age (over 40), disability, medical condition (cancer), sexual orientation or marital status that can be considered "severe or pervasive" enough to create a "hostile or abusive work environment." The term harassment can also include slurs and any other offensive remarks, jokes, other verbal, graphic or physical conduct.

"Sexual harassment" includes unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature that has the purpose or effect of interfering with an employee's work performance or creating an intimidating, offensive or hostile work environment.

What is retaliation?
Retaliation is any unlawful adverse action that is taken against an employee because he or she complained about, reported or protested something, including harassment, discrimination or unsafe or unhealthy working conditions.

Retaliatory actions can include discipline, firing, salary reduction, a change in job assignment, or negative performance evaluation. It can also include hostile behavior or attitudes - from a manager or co-worker - towards the complaining employee.