David Frederick Gomez
Provides effective advocacy and legal assistance in every aspect of labor and employment law, based on 40 years of experience in the forefront of this important area of law. David has seen it all and done it all, including litigating civil trials and appeals in both state and federal court systems, and representation before various local, state and federal administrative agencies. He also serves as a neutral in labor and employment mediations and arbitrations. He is experienced with state and federal employment laws and regulations in both the public and private sectors.
State and federal laws prohibit employment discrimination on many bases, including race, color, religion, sex, age, disability, national origin, genetic information, and pregnancy. Applicable laws at the federal level include Title VII, the Americans with Disabilities Act, Age Discrimination in Employment Act, Pregnancy Discrimination Act, and the Equal Pay Act. Some cities in Arizona such as Phoenix and Tucson, and in California such as San Diego, San Francisco, Los Angeles and Sacramento, have also enacted local ordinances expanding worker protections to include bases such as sexual orientation, marital status, and others. In most cases, an employee alleging discrimination must file a complaint with either the Equal Employment Opportunity Commission (EEOC) or the Arizona Civil Rights Division (ACRD) of the Attorney General's Office. Arizona employees must generally file a complaint within 180 days of the alleged act of employer violation, although in some cases, the deadline is up to 300 days. Either the EEOC or ACRD will investigate the charge and either issue a Letter of Determination finding reasonable cause to believe there was a violation of anti-discrimination law by an employer or simply issue a "Right to Sue Letter" to the charging party/employee. The Right to Sue Letter does not mean the employee has a good case or a bad case, but merely that the agency has finished its involvement in the matter. An employee who receives a Right to Sue Letter has 90 days within which to file a civil action. A successful employee may recover money damages or remedies such as reinstatement and declaratory relief, or under a 1991 federal law, additional remedies such as compensatory damages and punitive damages. In California, aggrieved persons may file with the Department of Fair Employment and Housing (DFEH), the country's largest state civil rights agency. DFEH enforces the California Fair Employment and Housing Act (FEHA) and investigates complaints of discrimination in employment, housing, public accommodations, and hate violence.
The law regarding sexual harassment has expanded greatly beyond the "quid pro quo" definition of thirty years ago, where it was required that a person in authority condition job treatment on the subordinate's submission to a romantic relationship or sexual favors. Today, sexual harassment can occur when unwelcome conduct of a sexual nature is so severe and pervasive as to create a hostile or abusive work environment. A hostile environment can be created by touching, offensive gestures, demeaning comments or jokes, graffiti and posters, and in many other ways. Moreover, a female can harass a male just as a male can harass a female, and a person can be illegally harassed by a member of the same sex as well. David Frederick Gomez has been involved in the development of Arizona sexual harassment law since representing the plaintiff in Ford v. Revlon, Inc., a case in which the Supreme Court of Arizona held that an employer's failure to respond to an employee's complaints could make the employer liable for the tort of intentional infliction of emotional distress.
In California, employees have up to two years to sue for wrongful discharge in violation of public policy. Arizona employees who have been fired have up to one year from their discharge to sue the employer for wrongful termination. Common grounds for such a lawsuit include breach of a written contract, illegal discrimination, or retaliatory discharge for whistle blowing or exercising rights such as voting rights or jury duty, or filing a workers' compensation claim. Public sector employees have additional prerequisites to filing suit, including filing a claim letter within 180 days of discharge.
The general rule is that an employee is hired "at-will," meaning that the employee can be fired at any time without notice for a good reason, a bad reason, or no reason at all, but not an illegal reason. Similarly, an employee is free to quit at any time for any reason or no reason. At-will employment may be modified by written contract, however. Where such a contract guarantees employment for a certain length of time or on certain conditions, it may be enforceable under state law. The "at-will" termination defense may also be subject to a multitude of other exceptions under both state and federal law. Other employment contracts can be created even without an express written employment agreement. Employers must be careful in their oral and written statements not to create contract rights when they do not intend to.
Wage & Hour
The Fair Labor Standards Act (FLSA) establishes minimum wage and maximum hour laws. Generally speaking, any employee who works more than 40 hours in a workweek is entitled to be paid for those extra hours at the overtime rate of one and one-half times the regular rate of pay. It is the employer's responsibility to ensure that an employee does not work overtime if it does not intend to pay the employee for the overtime. Wage and hour laws also govern meal breaks and rest periods (if offered), expense reimbursements and different types of leaves. Violations of overtime and other laws can be expensive to the employer, who may be required to go back several years and pay the back pay with penalties. Also, overtime violations typically involve more than one employee and can turn into class action lawsuits which can be very expensive to the employer. A recurring issue is whether certain workers are employees or independent contractors not subject to employee protections under the law.
The Law Offices of David Frederick Gomez represent employers and employee organizations in working out aspects of labor-management relations, including individual employee rights, as well as the obligations and responsibilities of both employers and employee organizations. We draft Memoranda of Understanding (MOUs), and represent parties in unfair labor practices and other charges brought under the National Labor Relations Board (NLRB). David also serves as a neutral in labor and employment arbitrations and mediations.
The Full Range of Knowledge and Experience
With over 40 years practicing labor and employment law, David Frederick Gomez has been equally at home dealing with employment policies under the Family and Medical Leave Act (FMLA) or employee pensions and benefit plans governed by ERISA. David counsels employees dealing with substance abuse issues and, in Arizona, drafts or reviews restrictive covenants and non-compete agreements between employees and employers. Many of the David's clients are executives and management-level employees, and he is sensitive to their unique positions and needs when negotiating severance agreements. No matter what the clients may need, he applies his decades of knowledge and experience to provide able and effective representation with competence, diligence, loyalty and respect to achieve results. Feel free to contact David Frederick Gomez with your labor and employment law questions and concerns.