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Congratulations to Chris Wesierski on CAL-ABOTA Board Treasurer

Congratulations to Chris Wesierski who was just elected treasurer on the CAL-ABOTA board. This means that in four years he will be president of CAL-ABOTA which is the statewide organization for American Board of Trial Advocates.

Currently, Chris is serving as co-president of the Robert A Banyard Inn Of Court with Eric Traut for the next two years. Chris is also the President of the Society of Fellows in Orange County.  He is on the board for the Orange County Bar Foundation as well as International Society of Barristers and the Masters Division for Orange County.

Chris Wesierski has been the managing partner for Wesierski and Zurek since 1987 and is now being recognized as a leader by various other organizations.

CHRIS W ABOTA3 without logo

 

Wesierski and Zurek is celebrating another Defense Verdict!

Chris Wesierski recently won a case for State Farm and its agent where the demand was six million dollars. A person sued State Farm claiming that he asked for a comprehensive business policy and that he was not provided coverage for his automobile that he used at work. He then was in an accident and received an approximate six million dollar judgment against him due to the injuries he caused the other driver who had crushed legs. The injured driver then substituted into the case on his behalf and asked for the $6 million dollar judgment to be paid by State Farm since they had not provided the proper insurance requested.

The case went to jury trial in downtown LA and the jury ruled in favor of the defense ( State Farm and the agent) in fifty-five minutes giving a defense verdict.

We are very proud of Chris Wesierski who has spent almost thirty days in trial in 2015 with great success in all endeavors.

Chris Wesierski is one of the few lawyers in the State who is a member of all five Trial groups

Chris Wesierski is one of the few lawyers in the State who is a member of all five Trial groups that are groups one has to be asked to join and to which membership is very exclusive;

 

American Board of Trial Advocates (Orange County President – 2014)

International Society of Barristers (Board of Directors 2015) limited to 600 worldwide

International Academy of Trial Lawyers (limited to 500 worldwide)

American College of Trial Lawyers (membership is limited to 1% of the lawyers in any individual State)

Litigation Counsel of America (composed of less than one-half of 1% of American lawyers)

 

We are proud of Chris Wesierski and his accomplishments!

WHW’s Mission Possible Event and WZ Attorney Kyle Rowen Featured in the OC Register

On Saturday, April 26th, over 400 people gathered at Newport Beach’s Island Hotel for WHW’s spy-themed Mission Possible Luncheon and Fashion Show. WHW celebrated with its supporters and introduced new friends to the mission of empowering employment success, raising over $116,000 toward their Employment Success Program.
“Wesierski & Zurek is proud to have been a sponsor of the Mission Possible event, and we are thrilled that WHW raised over $100,000 to help men, women and teens in Orange County achieve economic self-sufficiency,” states Rowen.
An article appeared in the OC Register on May 6, 2014 about WHW’s successful event, and featured a photo of Wesierski & Zurek lawyer and WHW Board Member, Kyle Rowen, along with his wife Laurie Rowen and Amy Goetz. To read the full article, see “Mission Accomplished: Spy-Themed Event Aids Women in Need Who Want to Dress for Success” OC Register, (May 6, 2014).
http://www.ocregister.com/articles/women-285059-ocprint-helping-one.html

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California Firefighters Entitled To Review And Comment On Supervisor’s Daily Logs Under FFBOR

November 12, 2013

By:  Kyle E. Rowen

The Firefighters Procedural Bill of Rights (FFBOR) provides in Government Code section 3255 that “a firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for personnel purposes by his employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment….”  Division 3 of California’s Fourth District Court of Appeals issued a decision on October 4, 2013, in the case of Poole v. Orange County Fire Authority that a supervisor’s daily logs of a firefighter, which are then used by the supervisor for personnel purposes and for preparing the firefighter’s annual evaluation, are subject to the provisions of FFBOR. 

In Poole, the facts are as follows.  Poole worked for the Orange County Fire Authority as a firefighter and was assigned to work at one of OCFA’s stations under the direction of a captain.  The captain at this station made handwritten and computerized notes, referred to as daily logs, regarding the performance of each of the employees he supervised.  The captain then used these daily logs to assist him in preparing performance evaluations for his employees.  These daily logs documented the efficiency of the captain’s employees, including whether the individual firefighter had complied with instructions and had adhered to the agency’s rules.  The daily logs, however, were not entered into OCFA’s official personnel file that were kept at its headquarters.  Rather, they were merely kept by the fire captain at the assigned station.

Subsequently, based in part upon the captain’s daily logs, Poole received a substandard performance evaluation and he was thereafter placed on a performance improvement plan.  At first, Poole did not know the captain’s daily logs existed.  Eventually, however, Poole’s union representative learned about the logs and then wrote to OCFA requesting that all of these adverse comments be removed from Poole’s “personnel file” that the captain kept at the station.  OCFA refused and contended that while the daily logs were intended for personnel purposes, they were never “entered” into Poole’s official personnel file.  Further, OCFA stated that to the extent an adverse comment from the daily logs made it into Poole’s personnel file, it would be included as part of his performance evaluation, and Poole would be provided an opportunity to review and sign, as well as respond to the performance evaluation. 

Following a court trial, the trial court found the captain’s daily logs were merely kept to assist him in preparing an employee’s annual evaluation and were not a part of Poole’s personnel file.  Thus, the daily logs were not subject to Government Code section 3255’s prohibition under an employer entering adverse comments into a firefighter’s personnel file until such time as the firefighter has read and signed the document containing the adverse comment. 

The Court of Appeals reversed the trial court’s decision and found the captain’s daily logs were used for personnel purposes and, therefore, subject to the protective procedures contained in FFBOR.

As stated above, Government Code section 3255 prohibits the employer of any firefighter from entering an adverse comment in his or her personnel file, including any other file used for personnel purposes, without allowing the firefighter to read and sign the document containing the adverse comment.  In addition, if an adverse comment is entered into a firefighter’s personnel file, the agency must allow the firefighter 30 days to file a written response.  Any written response must then be attached to the adverse comment entered into the firefighter’s personnel file. (Government Code section 3256).

When the legislature enacted FFBOR, it was their intent to mirror the protection afforded to police officers under the Public Safety Officer’s Bill of Rights Act (POBOR).  Similar to FFBOR’s provision in section 3255, section 3305 and 3306 of POBOR contain the same rights for public safety officers regarding adverse comments entered into their personnel file or any other file used for personnel purposes, and their ability to file a written response within 30 days.

Prior to this decision, it does not appear that there has been any published case in California dealing with whether a supervisor’s daily logs would be subject to an employee’s rights to review and comment on any adverse statement under FFBOR and POBOR. 

In concluding that the supervisor’s daily logs were subject to review and comment provisions in FFBOR, the court noted that the purpose behind granting the firefighter this right would be stifled and contrary to the legislature’s intent in enacting this statutory protection.  The general purpose the court found in having the provision within FFBOR was to allow the firefighter the right to review his or her personnel file and to comment on any adverse statements that may potentially affect the firefighter’s employment status.  The court found that the information contained in the supervisor’s daily logs was presented to Poole’s superiors within the OCFA and ultimately led to Poole’s sub-standard performance evaluation and placement on a performance improvement plan. 

Specifically, the court found that, “FFBOR’s purpose of providing firefighters a right to meaningfully respond to adverse comments that may affect personnel decisions concerning the firefighter [Citation] is frustrated when the firefighter’s supervisor maintains a daily log containing adverse comments that may reach as far back as the day after the firefighter’s last yearly evaluation and the adverse comments are not revealed to the firefighter until the next yearly review, at which point the firefighter may respond to the adverse comments in that review.”  In reaching this conclusion, the court found that a firefighter “could not be expected to remember the details of the same events months and months later when he was finally made aware of the adverse comments in the course of a yearly performance review.”

This case will have far reaching implications for all fire departments and law enforcement agencies in California.  A supervisor maintaining daily logs regarding the activity of their subordinates is, in many agencies, a common practice.  Indeed, some may argue it is a best practice for supervisors to maintain daily logs because it will allow them to prepare a more thorough and accurate annual performance evaluation.  Unless this case is de-published, overturned, or the legislature amends the statutes, supervisors who maintain daily logs should be advised to allow their subordinate peace officers and firefighters to review, sign, and respond to any adverse comments prior to it being entered into any other file used for personnel purposes.

As with all legal issues, it is important that a fire department or law enforcement agency seek out the advice and guidance from their own legal counsel.  As always, if you wish to discuss this case in greater detail, please feel free to contact me at 949-975-1000 or vial email at krowen@wzllp.com. 

Kyle Rowen is an attorney at Wesierski & Zurek, LLP and handles matters involving governmental tort liability, police liability, employment law, the Americans with Disabilities Act, municipal law, land use, and premises liability.  

The information provided above is for general use and it is not legal advice.

What is Wrongful Termination?

Wrongful termination surely does occur regularly in the workplace, but it is important for any employee to understand that employment is an “at will” situation, where the employee provides manpower for the employer at the will of the employer. There are many valid reasons for a business owner to terminate an employee, but there are also federal discrimination laws that deal with wrongful termination. Any employee that has possibly been wrongfully terminated in violation of federal statute should contact a Los Angeles wrongful termination lawyer.

EEOC Regulations

The Equal Employment Opportunity Commission has set guidelines for restricting employment as well as maintaining employees. The regulations also deal with advancement or employee status denials, as there are codified exemptions to an employer’s “at will” authority. Race, religion, and gender cannot be used as a reason to terminate employment or deny an advancement. Additionally, age and disability cannot be used as employment criteria either. Always remember that business owners do maintain the right to manage their business, as they deem fit, but still must respect EEOC boundaries and a “reasonable” employment relationship.

Employment Contracts

Employees that have the benefit of an employment contract have an added benefit. The contract controls the relationship between the employer and employee, or contractor and contractee, and breach of contract can easily include wrongful termination. Contracts are established for discreet periods of time and contractual protections cease when the contract expires.

Union Employment

Contract governance also includes union agreements, which are the most prevalent of employment contracts. EEOC laws are still applicable along with contract requirements for employers, so the possibility for wrongful termination is stronger when a union or individual employee contract is in force. A Los Angeles Discrimination Lawyer would be an excellent choice for counsel if EEOC violations could possibly exist. This situation is also applicable for many federal government employees and a federal employee lawyer will specialize in representing these cases.

It is important to understand that government employment can be a different classification because of certain secrecy requirements involving work duties, but the federal government is also held to a stricter scrutiny standard in many wrongful termination or discrimination claims. Always confer with a federal employee lawyer in a wrongful termination situation.

What Constitutes Sexual Harassment?

Los Angeles employment law provides employees with protection against behaviors and actions which constitute sexual harassment.

Sexual harassment is best defined as: Unwelcome sexual advances, requests for sexual favors or physical conduct of a sexual nature when

Submission is made a condition of the individual’s employment
Compliance is used as a basis for employment decisions
Unreasonably interferes with a person’s work performance creating an intimidating or hostile work environment
It is important to note that unwelcome behavior does not mean the same thing as involuntary behavior. Sexual conduct is unwelcome whenever the person being subjected to it considers it unwelcome. Some people consider their inappropriate actions to be harmless horseplay but sexual harassment of any form is illegal. Companies should have a standing sexual harassment policy and employees who feel they have been the victim of sexual harassment should make a good-faith effort to resolve complaints within the existing policy.

Sexual harassment comprises both verbal and physical conduct and may include:

Actual or attempted rape or sexual assault
Pressure for sexual favors
Touching
Sexual looks or gestures
Letters, phone calls, emails, text messages or materials of a sexual nature
Pressure for dates
Sexual teasing, joking, and remarks
Using references such as babe, sexy, doll, honey, etc.
Whistling, cat calls, sexual comments, topics or innuendos
These and other improper behaviors violate California’s Fair Employment and Housing Act (FEHA). In determining whether harassment has occurred, one should examine the entirety of circumstances, such as the nature of the sexual advance and the context in which the incidents occurred. Sexual harassment occurs when an employee does not solicit or initiate the sexual behavior and the employee regards the behavior as undesirable and offensive. Business owners should provide appropriate and up-to-date training regarding recent changes to sexual harassment law in order to avoid potential problems in the future. A Los Angeles sexual harassment attorney may visit the place of business to educate employees regarding how to avoid problems with sexual harassment accusations.

Protecting Your Company From Law Suits

Employment harassment and discrimination lawsuits are on the rise. Such suits are expected to increase even more as employee awareness increases. Los Angeles employment law provides employees with protection against behaviors and actions which constitute sexual harassment and other forms of harassment and discrimination.

Business owners have a responsibility to do everything they can to limit risk within the company. Following these simple suggestions could save business owners a great deal of money.

Business owners and managers should be attentive to their words and actions. Employees often model their words and actions after that which they see from upper management. Set a high standard and expect everyone to follow it. Do not say or do anything that could be misinterpreted as harassment, sexual harassment, or discrimination.

Partner with an experienced employment law attorney in Los Angeles. Business owners should hire an attorney that is familiar with the laws in Los Angeles. Specifically, the attorney should understand how to handle cases involving sexual harassment and other forms of harassment and discrimination. Do not wait until you are being sued to hire an attorney. Having a qualified person on board can help business owners to avoid lawsuits before they happen.

Consider incorporating. As a separate legal entity, a corporation is responsible for its own debts. That means creditors of a corporation generally can seek payment only from the assets of the corporation—and not from the personal assets of shareholders, directors and officers. Essentially, that means business owners can conduct business without risking their homes, cars, savings, or other personal property. Owners of a sole proprietorship or partnership, on the other hand, face unlimited liability for both business and personal assets.

Obtain liability insurance. Every business owner is susceptible to legal action. A liability insurance policy provides insurance coverage for lawsuits arising from injuries and property damage but may not automatically contain coverage for harassment and discrimination lawsuits. Business owners should be sure to include this coverage in their policy.

Business owners have the responsibility to protect their companies and their personal assets in the event of a lawsuit. Implementation of these few suggestions will lessen the likelihood that a business will suffer damage from employee lawsuits.

What is Wrongful Termination?

Wrongful termination surely does occur reularly in the workplace, but it is important for any employee to understand that employment is generally “at will”, meaning the employee provides manpower for the employer at the will of the employer. There are many valid reasons for a business owner to terminate an employee, but there are also federal discrimination laws that deal with wrongful termination. Any employee that has possibly been wrongfully terminated in violation of federal statute should contact a Los Angeles wrongful termination lawyer.

 

EEOC Regulations

The Equal Employment Opportunity Commission has set guidelines for restricting employment as well as maintaining employees. The regulations also deal with advancement or employee status denials, as there are codified exemptions to an employer’s “at will” authority. Race, religion, and gender cannot be used as a reason to terminate employment or deny advancement. Additionally, age and disability cannot be used as employment criteria either. Always remember that business owners do maintain the right to manage their business as they deem fit, but still must respect EEOC boundaries and a “reasonable” employment relationship.

 

Employment Contracts

Employees that have the benefit of an employment contract have an added benefit. The contract controls the relationship between the employer and employee, or contractor and contractee, and breach of contract can easily include wrongful termination. Contracts are established for discreet periods of time and contractual protections cease when the contract expires.

 

Union Employment

Contract governance also includes union agreements, which are the most prevalent of employment contracts. EEOC laws are still applicable along with contract requirements for employers, so the possibility for wrongful termination is stronger when a union or individual employee contract is in force. Depending on the level of jurisdiction, a federal employment lawyer may not be necessary, but would still be an excellent choice for counsel if EEOC violations could possibly exist. This situation is also applicable for many federal government employees and a federal employee lawyer will specialize in representing these cases.

 

 

It is important to understand that government employment can be a different classification because of certain secrecy requirements involving work duties, but the federal government is also held to a stricter scrutiny standard in many wrongful termination or discrimination claims. Always confer with a federal employee lawyer in a wrongful termination situation.

Employee Discrimination

Certain types of employee discrimination are against federal law. These laws apply to businesses in the private sector with 15 or more employees and to state and local governments. A Los Angeles discrimination Lawyer  can tell you more about discrimination laws and how they might apply to your situation.

 

Following are just a few of the federal laws that prohibit discrimination.

 

The Title VII of the Civil Rights Act of 1964 prohibits discrimination against individuals because of their race, color, religion, sex or national origin. This statute also makes it illegal to establish practices that result in discrimination against individuals. For example, a policy that English is the only language that can be spoken in the workplace may violate this statute unless the employer can prove that it is necessary for conducting business.

 

The Equal Pay Act of 1963 makes it illegal for a company to pay a member of the opposite sex a higher wage if they are doing substantially equal work and have equal responsibility. It also makes it illegal to pay a lower wage to a member of the opposite sex when filling vacant positions.

 

Title I and Title V of the Americans with Disabilities Act make it illegal to discriminate against individuals with mental or physical disabilities. This Act does not apply to individual’s whose disability is expected to last six months or less, or to those that are unable to perform the essential functions of the job. The employer is required to provide reasonable accommodations unless the accommodations will cause an undue hardship on the business.

 

The Civil Rights Act of 1991 provides remedies including monetary damages for intentional employment discrimination. The employer may also be required to pay court costs, expert witness fees and attorney’s fees.

 

There are many federal and state discrimination laws to protect employees. If you feel that you have been discriminated against, contact a Federal Employee Lawyer or a mspb Lawyer. The Alden Law Group is a nationally recognized employment law firm who will fight aggressively for your rights.