Q&A; : Fired Worker May Still Be Able to Sue Accuser

Q. I was terminated in October 1994 because of sexual harassment allegations by a female subordinate. I subsequently brought suit against my former employer for breach of contract of continued employment, breach of implied covenant of good faith and fair dealings, and for defamation.

The company was able to win a motion for summary adjudication of issues based on its at-will employment clause.

It was only during the discovery process of my suit in October 1995 that I was able to learn the exact nature of the allegations made against me. All the allegations were either totally or partially false. Had I known the exact nature of the allegations prior to my termination, I would have been able to refute most, if not all, of them.

What recourse do I have now? My suit has been dismissed by the court, and the time has lapsed to sue the woman who brought the charges.

--J.D., Irvine

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A. With respect to your lawsuit against your former employer, you really don’t have any recourse. If your employer had an employment-at-will policy in place, you could be fired for any reason, even a bad reason, so long as the reason is not illegal. Firing an employee based upon the false accusations of a co-worker is not illegal.

Your time may not have run out to sue your co-worker, however. There is a one-year statute of limitations for defamation lawsuits, but the year does not start running until you have notice of the defamatory statements.

If you did not learn of the defamatory nature of your co-worker’s accusation until October of last year, you may still be able to file a lawsuit against her before October 1996.

It is impossible to give a conclusive answer on this issue based on the information you have provided. You might want to consult with an attorney to determine whether your time has really run out to sue your accuser. Keep in mind, however, that the burden will be on you to prove that your co-worker’s accusations were false. If you do not have objective evidence, such as documents or testimony of disinterested third parties, a defamation lawsuit probably will not succeed.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Bosses’ Promises Difficult to Enforce

Q. I believe that my wife is being treated unfairly by her employers. She works for a group of doctors and shares the job with another woman with similar experience and skills. They have the same job title of X-ray technician. My wife works two days a week and the other woman three, although they frequently trade days.

My wife doesn’t have any benefits, while the other woman has paid vacation, sick days and dental and vision insurance. The other woman is paid at least $5 an hour more than my wife is paid. The other woman has been working longer at this particular job, but my wife has more than 25 years’ experience as an X-ray technician.

My wife was aware of the salary and lack of benefits when she accepted the job, but she didn’t know at the time that there was such a large disparity between her and the other technician.

My wife also was promised a yearly review and pay raise. After more than three years on the job, she has received neither, while the other technician and other members of the staff have received annual reviews and pay raises. No explanation has been given.

What legal obligation do her employers have to provide performance reviews and pay raises that were promised? What are her chances of retroactive pay increases? Since this has become very stressful for my wife, would she be eligible for unemployment compensation if she quit her job due to the stress?

--J.D., Costa Mesa

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A. No California statute requires an employer to provide performance reviews or pay raises. The employer may agree to do so, but even then the court may find the employer’s breaking of the agreement unenforceable as a breach of contract.

If the agreement your wife had was oral, it will be difficult to prove there was an agreement. In short, non-guaranteed promises to provide performance reviews and pay raises are difficult to enforce.

Further, employees who voluntarily quit have a difficult time obtaining unemployment compensation. When an employee quits, she must show that the job was so stressful that she was forced to leave. Generally, disputes over contractual agreements regarding wages and benefits would not meet the requirement.

If your wife is truly stressed out by her work, she may want to consider taking a disability leave of absence. She should contact the California Employment Development Department to determine whether she would be entitled to disability insurance.

--William H. Hackel III

Employment law attorney

Spray, Gould & Bowers

Unhappy About Commission System

Q. My son is employed as a salesman for a service bureau. He always has been paid a “draw” to be applied against the commissions he earns. The problem: He was transferred inside for production for nine months, during which time he couldn’t make sales calls. Now that he is back full time as an outside salesman, they are applying his current commissions to offset the draw that he was previously paid. Is that legal?

--L.S., Los Angeles

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A. Assuming you mean that they are applying current commissions to draws that he received as an outside salesperson before being transferred to a non-sales position, the answer is that what your son’s employer is doing is legal, so long as it does not violate the terms of any written agreement your son had with his employer for the payment of commissions.

If, however, the employer is purporting to apply current commissions to a salary he received for non-sales work, there may well be a problem with what the employer is trying to do.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker