California--implied contract via employee handbook

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California--implied contract via employee handbook

Post  charlikscott on Sat Oct 11, 2008 8:06 pm

I am trying to understand this issue and how it might apply to a situation I was in several months ago. A friend whilst on another similar board saw a post referencing the notion and suggested I ask here.

here's the somewhat short version.

Up into about a year and a half ago, I worked for a major retail company, name not important. I had been there for several years, was promoted blah blah. Then there was a change in management and my new boss had a different opinion about several issues than I had. She started a campaign to piss me off and get me to leave, which didn't work.

Then suddenly without warning, I"m called into her office where our local Loss Prevention rep was waiting. He starts asking me questions about whether I removed certain items from the store without getting the bosses permission. After our conversation, he had me write out a statement, then I was informed that I was on a paid suspension while the matter was investigated. This is SOP with our company and is outlined as a possible action in our employee handbook.

Now this is where things get dicey. When I reported back at the end of my suspension I was fired and handed my final paycheck. However, no indication of an investigation was given to me. I had taken the items freely in accordance with policies in the handbook (but not the policy they were tossing at me as their grounds for firing me as a thief). My statement had some verbage that could be interpreted a couple of ways and it appears that they used the interpretation that favored them and that is that. A couple of months ago I found out that I could demand access to my old personal record and I did and even asked for all materials covering my termination and there was nothing there to show that they did anything but take my statement and immediately request my check be processed.

So what I want to know is if I can demand proof that they did investigate the matter per their statements when I was suspended and per the handbook and if they can't prove they did in fact follow procedure do I have any possible grounds to claim violation of an implied contract. what would I need (other than a likely a lawyer) to do this. what is the time limit to take action. what outcomes, if successful, could I achieve etc. ideally I would take my job back if I could pull that off. I loved my job and the company, just not my boss so if I could get them to admit even possible fault and remove my termination and the non-rehireable status so I could apply to work at the company again in old rank and pay, I would actually be happy with just that. I would just stay away from my old boss (although a demented part of me would want her to be forced to take me back just to make her miserable, yes I"m sick)

thanks


Last edited by charlikscott on Thu Dec 04, 2008 5:57 pm; edited 1 time in total

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Re: California--implied contract via employee handbook

Post  JoeC (McGruff) on Sat Oct 11, 2008 10:45 pm

Whether your situation meets an implied contract theory would depend on the wording in the handbook. This is something you really cant do your self. However the award you are after reinstatement is doable out of court during the pretrial litigation phase, with an attorney depending on how the facts roll out. You should seek an attorney in your state. Tell him your interested in restatement with back pay,and attorney fees and see where it goes.
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Re: California--implied contract via employee handbook

Post  bears00 on Sun Oct 12, 2008 6:42 am

Is there a statement ANYWHERE in the handbook that reads something to the effect of "nothing in this document is intended to create any contract of employment, expressed or implied?"
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Re: California--implied contract via employee handbook

Post  JoeC (McGruff) on Mon Oct 13, 2008 2:30 am

Handbook disclaimers in Ca. don't carry much weight the progressive discipline procedure itself creates an implied contract "for discipline". Scott v. Pacific Gas & Elec. Co., 904 P.2d 834 (Cal. 1995) "progressive discipline policy created an implied in fact contract"; see also Janda v. Madera Cmty. Hosp., 16 F. Supp. 2d 1181 (E.D. Cal. 1998) "hospital's by laws were held to be an implied in fact contract".
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Re: California--implied contract via employee handbook

Post  charlikscott on Tue Oct 14, 2008 3:30 pm

bears00 wrote:Is there a statement ANYWHERE in the handbook that reads something to the effect of "nothing in this document is intended to create any contract of employment, expressed or implied?"

I believe there is, but as Joe mentions below, there appear to have been cases where the courts said those statements were negated by other policies etc. And that's what I"m trying to understand. Might I have such a situation, what keywords and phrases should I look for in the handbook and other paperwork to signal this possibility. and what can I do as action. I only ask about the hints because as folks can likely guess I don't have a ton of money to toss around and I don't want to pay a bunch of lawyer fees that will break what little bank I have if all hope is lost.

Now I have the fun of finding a lawyer that will actually talk to me. I tried this once but the first question was always what type of company and was there a written contract. When I told them, I was basically hung up on. No further details requested or listened to.

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Re: California--implied contract via employee handbook

Post  JoeC (McGruff) on Tue Oct 14, 2008 3:37 pm

Well keep looking usually a paralegal or intake specialist does what is know as an intake over the phone (no charge). The attorney reviews the intake (no charge) if the case has merit you are called in for an initial consultation (usually no charge). If after that the case has merit fees are discussed. If the case is good the fee is contingent. If the case is hopeless the attorney will let you know after the consultation.
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Re: California--implied contract via employee handbook

Post  charlikscott on Fri Oct 17, 2008 3:06 pm

JoeC (McGruff) wrote:Well keep looking usually a paralegal or intake specialist does what is know as an intake over the phone (no charge). The attorney reviews the intake (no charge) if the case has merit you are called in for an initial consultation (usually no charge). If after that the case has merit fees are discussed. If the case is good the fee is contingent. If the case is hopeless the attorney will let you know after the consultation.

any suggestions of buzzwords or phrases I can toss at this paralegal that will get them to stop slamming on the brakes as soon as they ask what I do. A court case regarding handbooks creating an implied contract that I can toss at them. anything. because right now I've only had the person on the phone ask if I had a contract that lays out a set period of time for employment and when I say no they are like "at will, nothing you can do, have a nice day" and hang up (I'm serious)

And is there any place to put ones hands on a list of employment lawyers in the LA area (meaning Los Angeles, Bev Hills, Santa Monica, Burbank etc. I'd even drive as far as Pasadena, Long Beach etc if needed). Cause there are thousands of lawyers here and not all of them do Employment law. I don't want to waste my time with someone that does something else if I can help it

thanks

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Re: California--implied contract via employee handbook

Post  JoeC (McGruff) on Fri Oct 17, 2008 10:29 pm

No buzz words just tell them the story they ask questions answer the questions honestly.
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Re: California--implied contract via employee handbook

Post  bears00 on Sun Oct 19, 2008 1:38 am

Just look for things in your handbook that IMPLY that you will be there at some point in the future.
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Re: California--implied contract via employee handbook

Post  charlikscott on Tue Oct 21, 2008 3:27 pm

JoeC (McGruff) wrote:No buzz words just tell them the story they ask questions answer the questions honestly.
JoeC

I answered their questions honestly and that's when they hung up. They never asked about handbooks, procedures etc. What was the job, was there a contract was out of the mouth first thing. No chance to tell them even a quick version of my story. It was like there was a check list of questions designed to help them reject clients. Perhaps it was just the law firms I did manage to track down that were like that and not all, but it was very disheartening.

So it seems the answer I will have to give to the contract question is yes. Not a written one regarding length of employment although I was told a number of times by management that I "have a long future with the company", but one regarding terminations which is spelled out in our policy and procedures handbook. Perhaps that answer will perk up the ears on the other end and get a real meeting on the books. All I can do is try, yes.

Now as for the other question. Is there a way to find who does employment law in this area (Los Angeles), cause looking up lawyer in the yellow pages is a major case of not enough info.

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Re: California--implied contract via employee handbook

Post  charlikscott on Tue Oct 21, 2008 3:43 pm

bears00 wrote:Just look for things in your handbook that IMPLY that you will be there at some point in the future.

They are very very careful not to include anything that implies that if you X, Y and Z you will have a job. All retail jobs are like this. At least in California. They will spell out what "at will" means, they will toss the phrase "appropriate action up to and including termination" into all policies. But they will never, never, never put down anything that tells you that you will have a job. Unless you can argue that a job description (with details re: tasks and responsibilities) is that X,Y,Z. They will argue that it is not. At a couple of the companies I have worked for they actually repeat the whole "this is not a contract by statement or implication" right on the page with the description. Just to be sure that you understanding that it is not.

So in the end the only way to find something you can work with is to know what has legal backing either in law or in case law as an implication so you can spot it if it is there. Thus my questions.

And if I haven't said it recently, thank you all for the help. Now if I can just find that lawyer here locally to help me with the rest of the issues. I'll be await any tips on find those names.

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an update

Post  charlikscott on Wed Dec 03, 2008 3:41 am

so I had a meeting with a local labor lawyer. who told me that while California is an 'at will' state there is an understanding that they must have either a good reason to fire someone or give no reason, if they give a bad reason they blew it. he also said that there were indications that I might be able to argue they used a bad reason but it was not super strong so I could still lose. Unfortunately we were past the statue of limitations on said issue and the employer could win a summary judgment just on that fact and would probably use it right out of the gate.

when I asked about the handbook issue he told me the California doesn't recognize the implied contract issue like some states do. You either have a contract or you don't. My time was up and I didn't have the case references with me to ask about them.

so now I'm confused about the whole handbook and discipline issue and all that. Anyone here that actually works in California that can clear that up for me. Cause I don't want to waste my time contacting other lawyers if this guy told me correctly or if I only had 6 months or what not to get a case started etc. confused confused

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Re: California--implied contract via employee handbook

Post  JoeC (McGruff) on Wed Dec 03, 2008 4:10 am

P.M the Cal attorney that replied in this thread as far as cases here you go:
Tameny v Atlantic Richfield Co. (1980) 27 Cal 3d 167, 164 Cal Rptr 839, 610 P2d 1330, 115 BNA
LRRM 3119, 1980-2 CCH Trade Cases 63378, 9 ALR4th 314.
See Tameny, at n. 12.
Cleary v American Airlines, Inc. (1980, 2d Dist) 111 Cal App 3d 443, 168 Cal Rptr 722, 115 BNA
LRRM 3030.
Pugh v See's Candies, Inc. (1981, 1st Dist) 116 Cal App 3d 311, 171 Cal Rptr 917, 115 BNA
LRRM 4002.
Seaman's Direct Buying Service, Inc. v Standard Oil Co. (1984) 36 Cal 3d 752, 206 Cal Rptr 354,
686 P2d 1158, 39 UCCRS 46.
Tameny v Atlantic Richfield Co. (1980) 27 Cal 3d 167, 164 Cal Rptr 839, 610 P2d 1330, 115 BNA
LRRM 3119, 1980-2 CCH Trade Cases 63378, 9 ALR4th 314.
Seaman's Direct Buying Service, Inc. v Standard Oil Co. (1984) 36 Cal 3d 752, 206 Cal Rptr 354,
686 P2d 1158, 39 UCCRS 46.
Wallis v Superior Court (1984, 4th Dist) 160 Cal App 3d 1109, 207 Cal Rptr 123.

However, in Clutterham v Coachmen Industries, Inc. (1985, 2d Dist) 169 Cal App 3d 1223, 215
Cal Rptr 795, the court held that the implied covenant does not require an employer to offer such a
termination benefit to an employee about to be discharged due to a plant closing where legitimate reasons exist for ceasing operations. Under such conditions, the covenant does not require that the employer give the employee's financial interests as much consideration as it gives its own.
See Khanna v Microdata Corp. (1985, 1st Dist) 170 Cal App 3d 250, 215 Cal Rptr 860, 120 BNA
LRRM 2152.

It has been common in California to speak of separate tort causes of action in wrongful discharge
cases when the plaintiff's claims are independently based upon the public policy exception and upon a
violation of the implied covenant. Further distinctions are made between a cause of action for breach of the employment contract, and a cause of action for breach of an implied promise not to terminate an at-will employee except for cause. See, for example, Koehrer v Superior Court (1986, 4th Dist) 181 Cal App 3d 1155, 226 Cal Rptr 820; Khanna v Microdata Corp. (1985, 1st Dist) 170 Cal App 3d 250, 215 Cal Rptr 860, 120 BNA LRRM 2152. Only a distinction between a cause of action for breach of the contract itself, under which a breach of the implied-in-fact promise should be subsumed, and a cause of action for the tort of wrongful discharge, under which the public policy and bad faith claims are alternate theories of recovery, is technically appropriate, however. For example, in 999 v C.I.T. Corp. (1985, CA9 Cal) 776 F2d 866, 3 FR Serv 3d 923, the court held that the trial court had not erred by instructing the jury on breach of the implied covenant in an action on the contract (no tort damages were claimed), where the issue was presented to the jury as an alternate theory of recovery and the jury was also admonished not to award double damages for breach of contract. Whether the tort action is based upon a violation of public policy or a breach of the implied covenant, or even the intentional infliction of emotional distress, they are but alternate theories by which the claim may be asserted. Tameny v Atlantic Richfield Co. (1980) 27 Cal 3d 167, 164 Cal Rptr 839, 610 P2d 1330, 115 BNA LRRM 3119, 1980-2 CCH Trade Cases 63378, 9 ALR4th 314.
American Jurisprudence Proof of Facts 2d
Database updated July 2006 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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Re: California--implied contract via employee handbook

Post  charlikscott on Thu Dec 04, 2008 5:43 pm

okay all the case stuff you posted has me going huh? but I will try what you suggest and PM the fellow from here in LA that posted.

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Re: California--implied contract via employee handbook

Post  charlikscott on Thu Dec 04, 2008 5:57 pm

JoeC (McGruff) wrote:Whether your situation meets an implied contract theory would depend on the wording in the handbook. This is something you really cant do your self. However the award you are after reinstatement is doable out of court during the pretrial litigation phase, with an attorney depending on how the facts roll out. You should seek an attorney in your state. Tell him your interested in restatement with back pay,and attorney fees and see where it goes.
JoeC

One question you didn't answer that is pressing on my mind after meeting with this lawyer the other night.

Time. How long do I have to start a case before the other side can try to get it tossed out for being too long ago.

on the 'bad reason' the lawyer honed in on he said that was one year. after that I could file but they could get it tossed and likely would.

Would the contract issue be the same time or do I have a bit longer. and how likely is it, in California, for it to just get tossed. What I mean is, if a judge saw some merit to the issue and it was pushing the time limit, is he going to just toss it cause the rule is X months/years or does he have the liberty to let it go to trial at his discretion. and if he can use discretion, is California generally more employee or employer friendly.

As much as I want to fight this even now, I don't want to waste my time or money on something I'm not going to win cause of a time limit that can't be tweaked.

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Re: California--implied contract via employee handbook

Post  JoeC (McGruff) on Fri Dec 05, 2008 1:48 am

One question you didn't answer that is pressing on my mind after meeting with this lawyer the other night.
Time. How long do I have to start a case before the other side can try to get it tossed out for being too long ago. on the 'bad reason' the lawyer honed in on he said that was one year. after that I could file but they could get it tossed and likely would.

I don't know the answer that is why I did not answer that question.
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