The Lyman Firm - For Employee Rights

Most people are told a Performance Improvement Plan is a chance to fix things and get back on track.

Sometimes that’s true.

But in many cases, it’s the beginning of the end.

By the time a PIP is put in place, the decision may already be heading in one direction — and the process becomes about documenting that outcome.

That doesn’t mean every PIP is improper. But it does mean you should approach it carefully, understand what’s happening, and protect yourself.

If you’ve been placed on one, the details matter more than you think.

Most people think legal cases are decided simply by applying the law to the facts and reaching an outcome.

In reality, a lot of the result is shaped much earlier, through how the case is framed, how the story is told, and how a series of overlapping negotiations play out between the different players involved.

I wrote this piece a while back breaking down some of those “hidden” dynamics that often end up deciding these cases.

Worth a read if you’re curious how these cases actually play out in practice.

The hidden negotiations that decide your employment case The hidden negotiations that decide your employment case Shaping case outcomes through tactical empathy and strategic framing Dan Lyman 2025 September Litigation doesn’t begin or end in the courtroom. It lives in a network of negotiations most lawyers never see. Too many focus exclusively on their...

This is one of the biggest myths my clients repeat back to me after they’re fired 👇

Hi everyone! I apologize for the social media hiatus. Work and life has gotten pretty busy, but I’m going to be renewing my effort to keep you in the fold!

I do have a pretty exciting announcement and that is that I have been selected as a 2022 Northern California Rising Star! I’m so grateful to my peers for the nomination to Super Lawyers and I’m so happy that I get to participate in legal work that leaves a lasting effect on the individuals and business of this community. Below I have copied Super Lawyers’ description of a Rising Star listed attorney, so if you’re interested, take a look. Thank you for following the journey!

From Super Lawyers: “Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country.”

Considering current events, for our next installment in our series on “protected characteristics” or “protected activities,” we thought it appropriate to remind everyone of the workplace protections afforded to women in California who become pregnant, give birth, or have an abortion.  And to be clear, these protections will still exist even if Roe v. Wade is overruled.
 
Your “s*x” is a “protected characteristic,” which means that your boss cannot treat you badly because of your “s*x” without potentially violating anti-discrimination/retaliation laws. 
 
“Sex” is defined in the law to include pregnancy, childbirth, breastfeeding, and any medical conditions related to the pregnancy including having an abortion.  This means that a boss cannot take an adverse action against you because of any of these without committing s*x discrimination and/or retaliation. 
 
Women who become pregnant, give birth, or seek medical treatment for these things should be aware that they are likely entitled to protected time off under a patchwork of state, local, and federal laws, which we’ll outline in detail in another post. 
 
In short, pregnancy triggers a host of protections under California and Federal law, protections that will remain intact in a post-Roe v. Wade era.  If you believe your employer may be offending any of these protections, you should contact a lawyer to discuss your situation.

Happy Friday, all! Today we’re exploring an example of a “protected activity”, as mentioned in our last post. Hope this is helpful and that you have a great weekend!

Q: Is it okay for my boss to be a jerk to me because I complained about my paycheck being short? 
 
A.  Probably not.  California generally requires employers to pay their employees in full and on time.  If you reasonably believe your employer failed to do this, then your complaint is considered “protected activity” because you are complaining about potentially illegal activity and considered a “whistleblower.”
 
In this situation, you may have a retaliation claim against your employer if your boss’ behavior towards you negatively affects the terms or conditions of your employment.   For example, if you are terminated or suspended, if your hours or duties change, or if you just experience a pattern of harassment that is sufficiently severe, then you would likely have a viable claim.      
 
The key takeaways: (1) you are generally entitled to be paid in full each pay period, and (2) your boss cannot take an adverse action against you because you complain about unlawful incidents or practices at work.

So your boss is obnoxious and mean, can you sue? Maybe, but maybe not…

It is not illegal to be a bad boss. By default, in California, it is generally okay for your boss to be terrible to you, to have unrealistic expectations, to be overly critical, to be erratic, unclear, unfair, or rude.

Whether or not this behavior is illegal depends on why your boss is acting this way. It’s about your boss’ motivation. Generally, these behaviors are only illegal if they are directed at you because you possess a “protected characteristic” or engaged in a “protected activity.”

For example, your boss can switch you to graveyard because he found out you’re a Dodgers fan, but he cannot do so because he found out you’re Muslim. This is because religion is a protected characteristic and your Dodger fandom is not, no matter how religiously you follow the team. It’s not so much about the act, as it is about the motivation.

Stay tuned for more posts exploring common and uncommon “protected characteristics” and “protected activities” under California law.

I got fired, but my company is being super nice about it and is giving me $5,000.  All I had to do was sign some paperwork.  Great! . . . Right?
 
Wrong. If you are being fired and the company offers you extra cash in exchange for signing a “severance” or “separation” agreement, you should be aware of what that extra cash is costing you. 
 
A severance agreement is a contract between you and the company where the company pays you for your (legally binding) promise not to sue the company for any reason.
 
Okay…so what’s the problem?  Often (but not always) companies offer severance agreements when they know you have a potential lawsuit against them.  They are trying to buy you off quickly—before you talk to an attorney—for a fraction of what your case is worth.  You may take a severance offer of $5k when you could have a case worth tens or even hundreds of thousands of dollars. 
 
So what should you do if you get a severance offer?  Talk to an attorney! If you feel like there was anything potentially unlawful about your termination or during your employment, you should absolutely book a free consultation with an attorney to find out if you have a potential case.  Otherwise, you have no idea what you’re giving up for that $5k.

Human Resources (HR) is a valuable part of the employment team and any company’s leadership. Their role includes answering questions about your compensation, recruiting and hiring new employees, and acting as an intermediary between employees and management. While their role is highly important for you as an employee, there are some things to be aware of in your interactions with HR. Here are a few key things to remember and prepare for when working with HR:

- HR’s primary goal is to protect the company.  If HR thinks you are raising something that could expose the company to legal liability, they will manage the situation in way that minimizes that liability. This means, even if the company takes the correct action (for example, fires a s*xual harasser), they may prepare the paperwork so that risk of liability is minimized by, for example, manipulating or omitting minor facts such as when the harassment occurred, who was present, when you complained, and when the corrective action occurred.  These facts can have a huge impact on legal claims and skilled HR professionals are very aware of this. 
- Read everything you sign thoroughly and be sure to correct any misstatements or add any information that you think should be included in the paperwork. 
- Do not be afraid to refuse to sign any investigation documents if you believe they misrepresent what happened. 
- If you are asked to sign a “release” or “waiver” of any kind in exchange for payment, you should talk to an employment attorney because the company has undoubtedly realized that you have grounds to sue and are trying to cut you off.

Say your coworker has started making fun of you. You’re trying to convince yourself that you’re being sensitive until this morning when he calls you a racial slur while you’re filling your water bottle at the cooler. It’s time to make a work complaint.  Here is what you need to do:
 
1. DO complain to the right person.  Check your handbook, it’s likely your direct supervisor, HR, or there may be a hotline you can call.  If your complaint is about your boss, make sure to go to someone else.    
2. DO make sure the complaint is in writing and keep a copy for yourself. 
3. DO keep to the facts and be specific.  Include names, dates, and specific conduct or words exchanged.
4. DON’T use legal jargon (don’t say “I was s*xually harassed” or “I am experiencing a hostile work environment”).
5. DON’T threaten to sue the company. 
6. DO ask for a written response from the company and any investigation documents (they may not give them to you, but you should ask) and keep everything. 

It’s important to remember that complaining is a perfectly fine thing to do. Your job is not doing you the favor of giving you a paycheck, you are doing valuable work for them and you deserve to be protected.