Questions About California Employment Laws?

What Qualifies as Discrimination in California?

Multiple state and federal laws place requirements on how public and private employers can make employment decisions. Various types of employment discrimination are covered by these laws.

In California, the Fair Employment and Housing Act (FEHA) is the state’s primary anti-discrimination law. The FEHA protects employees in a number of different ways. Under FEHA, employers with five or more employees cannot discriminate against job applicants or employees who belong to specific protected groups. The current list of protected categories includes race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran service or status. In some situations, you may have a protected status by merely being closely associated with a member in one of these groups.

This means an employer cannot fire you, deny hiring you or take other adverse action against you where such decision is substantially motivated or based on your inclusion in, or association with, one of these protected groups. The FEHA also protects you from workplace harassment and retaliation because of your inclusion in one of these groups. It is also important to know that an employer cannot retaliate against you for filing a discrimination complaint.

The Department of Fair Employment and Housing provides more information about who is protected on its website.

In addition to the California FEHA, there are state laws that protect women who intend to get pregnant, are pregnant, or who have been pregnant. State laws also protect employees who need to take leave due to the birth of a child or for caretaking duties. California’s Pregnancy Disability Leave law, the California Family Rights Act and New Parent Leave Act allow these individuals to take protected leave. Most employers cannot legally terminate the positions of these employees.

There are also federal laws that offer employees protection from discrimination. While California’s laws are generally more encompassing, it is worth mentioning the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Civil Rights Act may also offer protection to employees who belong to protected groups.

Discrimination occurs when an employer runs afoul of these laws and makes employment decisions that violate your rights. For instance, an employer is in violation of FEHA if they fire a worker for being Muslim, or because they are viewed as too old or slow or because a woman wants time off to start a family or because an employee has a disability that requires an accommodation the employer does not want to be bothered with. There are many, many examples we could provide of what constitutes discrimination.

If you are unsure whether you are being discriminated against or your rights are being violated by your employer’s actions then we encourage you to call us for a consultation. We can help determine if your employer has violated any of the laws mentioned above and discuss what recourse may be available to you.

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Am I Entitled to a Reasonable Accommodation?

The Americans with Disabilities Act and the FEHA require most employers to accommodate employees with qualifying disabilities, so long as these accommodations do not impose an undue hardship on employers. Generally, an accommodation that will allow an employee to perform the essential functions of their job must be accommodated.

The FEHA has a broader view of what qualifies as a disability and includes many common physical and mental health conditions. When an employee notifies the employer of a disability and requests an accommodation, an employer covered under FEHA must assess the employee’s specific job functions and limitations caused by the disability to determine how, or if, the employee can be accommodated. This is referred to as engaging in the interactive process with the employee. This process is also a two-way process that involves both employer and employee to engage in the process together and in good faith.

Failing to provide reasonable accommodations to an employee with a qualifying disability may constitute discrimination under California and/or federal law. Failing to engage in the interactive process may support a claim by itself.

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What Are Reasonable Accommodations?

The California Fair Employment and Housing Act (FEHA) requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. Reasonable accommodation can include, but is not limited to, the following:

• Changing job duties
• Providing leave for medical care
• Changing work schedules
• Relocating the work area
• Providing mechanical or electrical aids

The Americans with Disabilities Act (ADA) requires an employer with 15 or more employees to provide reasonable accommodation for individuals with disabilities unless it would cause undue hardship. A reasonable accommodation is any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities. There are three categories of “reasonable accommodations”:

• changes to a job application process
• changes to the work environment, or to the way a job is usually done
• changes that enable an employee with a disability to enjoy equal benefits and privileges of employment(such as access to training).

If you suspect that your employer illegally denied you a reasonable accommodation or has discriminated against you based on your disability, we encourage you to call The Gould Firm for a free consultation. We can help you determine if your employer may have violated the law and assist you in recovering damages and other relief you may be entitled to.

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What Is Wrongful Termination in California?

The legal description of wrongful termination is more complex than it sounds. Many terminations are wrong in the sense they are “unfair” but unfairness does not support a claim for wrongful termination. A legally actionable wrongful termination claim may arise when an employer covered under specific state and or federal laws illegally terminated an employee in violation of those laws.

Some Examples of Wrongful Termination:

• If your disability qualifies you for a reasonable accommodation, your employer is covered by FEHA or the ADA. If you are fired because of your disability or request for accommodation, it may be considered wrongful termination.
• If you are fired merely because you belong to one of the many protected classes that likely would be a wrongful termination.
• If you are fired for your having engaged in a “protected activity” such as reporting illegal, fraudulent or unethical corporate activities (whistleblowing) that affect the public and you are fired as a result of such complaints, that would likely be a wrongful termination.
• If you report wage theft or other labor violations and you are fired as a result of such complaints that would likely be a wrongful termination.
• If you are fired for reporting discriminatory treatment of others in the workplace that would likely be a wrongful termination.

“At-will” employment is not an excuse for wrongful termination.

A wrongful termination claim may also arise where an employer fires someone for reasons that do not actually violate may violate a fundamental public policy. In such a case the employee might still have a claim for wrongful termination.

The purpose behind such claims is that employers are required to know certain fundamental public policies of the state as set forth in their constitutions and statutes. There are a variety of actions that can constitute a violation of public policy in California. Proving such a claim generally requires proving that the policy is set forth in a constitutional or statutory provision; that the policy benefits society at large, rather than serving merely the interests of the individual employee; that the policy was well-established at the time the employee was fired; and, that the policy is “fundamental and substantial”.

One example of a termination that would violate public policy would be when an employer fires an employee for refusing to engage in an activity that is harmful or illegal. An employer might violate public policy if they fire an employee for refusing to sign an illegal contract. There are, of many types of terminations that might violate public policy and give rise to a claim for wrongful termination.

Wrongful termination claims provide a powerful tool for employees who were illegally terminated and can serve as a means to recover damages to help a wrongfully terminated person move on with their life.

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What Is Workplace Retaliation in California?

Other than terminations based on discrimination and public policy reasons, employer retaliation is another common basis to assert a claim for wrongful termination. Even if you are not terminated, other adverse actions your employer imposes against you such as a demotion, changes in duties and responsibilities and the like may be actionable and support claims for damages.

Your employer also cannot fire you for participating in a protected activity, such as whistleblowing. Firing you for doing so would be considered illegal retaliation as would a termination.

Other protected activity could include:

• Requesting or taking protected leave;
• Complaining about discrimination against the employee or others;
• Threatening to complain about discrimination against the employee or others;
• Providing information in an employer’s investigation of discrimination or harassment;
• Refusing to obey an order reasonably believed to be discriminatory or illegal;
• Resisting harassing behavior;
• Intervening to protect others from harassing behavior;
• Requesting accommodation for a disability or for religious beliefs;
• Complaining that pay practices are discriminatory;

This list is not exhaustive, and there could be numerous other examples of protected employee activity.

To file a claim against your employer, you would need to demonstrate that retaliation occurred. You would need evidence connecting your protected activity to the materially adverse action. Retaliation generally must be seen as severe and pervasive by both you and, a reasonable third person (often the judge or jury).

The Gould Firm Employment attorneys can help you determine if you have been a victim of retaliation, harassment or wrongful termination. Please feel free to contact us to discuss your situation.

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What Type of Damages Are Recoverable from Wrongful Termination or Retaliation Claims?

In the case of wrongful termination, an employee may be entitled to recover compensatory (or monetary) damages, punitive damages, attorneys’ fees and in some cases, reinstatement to his or her former job.

Compensatory Damages

Compensatory damages are a type of monetary award intended to make the employee “whole” again. This can include the recovery of the employee’s lost past and future wages. In certain cases, and depending on the facts and circumstances, this could also include damages for emotional distress or mental suffering. Such awards could also include interest on the employee’s award.

Legal Costs

In many cases, employees who prevail on their wrongful termination lawsuit are entitled to recover their legal costs. This can include attorneys’ fees, expert witness fees, and court costs. An employer who wins, however, is generally NOT entitled to recovery of damages from the employee who was not able to prove their case.

Punitive Damages

Punitive damages are damages awarded in certain extreme and egregious cases as a type of monetary punishment against the employer defendant. These are awarded in addition to the employee’s other damages. Such damages may be awarded by a court to deter the defendant and other employers from engaging the same wrongful acts or conduct in the future.

Reinstatement

In some cases, an employee may be able to either get his or her old job back or a similar position of the same seniority with their former employer.

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What Is At-Will Employment?

California is an at-will state, meaning that you can be fired by your employer at any time. However, this does not mean your employer can fire you for any reason. Employers cannot terminate employees for discriminatory reasons that violate state or federal laws. If your employer does fire you in violation of a state or federal laws or in violation of a well established public policy then it would very likely be a wrongful termination which would entitle you to damages.

Written or oral employment contracts may also bar employers from terminating the positions of certain employees without specific reasons or just cause. The Gould Firm’s California labor law attorney can help you determine if your employer illegally terminated your position.

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What Should I Do If I Suspect I Am Not Being Properly Paid?

Wage and hour disputes usually result from an employer neglecting the rights of their workers in order to save money. This is often done by misclassifying employees as independent contractors, forcing employees to do work while off the clock, and by not providing employees with mandatory meal and rest breaks. When this happens, employees lose out on their hard-earned wages.

If you suspect that your employer is failing to compensate you for your work, you should take immediate action. Federal and state law limits the amount of time you have to file a claim, so contact a San Diego employment lawyer right away. Be sure to keep a record of the hours you work, the breaks you take and the pay you received for that work. Records from your workplace are usually recoverable, but employers may have tampered with these records in order to hide work/hour violations.

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Am I Entitled to Severance?

In the State of California, employers are not required to provide any type of severance to an at-will employee. When the employee or employer decides to end their employment relationship, there is no requirement for severance pay unless both parties have agreed to such an arrangement. However, a severance package can work in favor of both employers and employees when properly handled.

If an employer wishes to cushion employees from the effects of a layoff, a severance offer can help. Companies can also use a severance package to secure a release of any claims the employee may have at the end of their employment. For employees, severance pay provides an opportunity to find new equitable work without suffering financial hardship. Since both parties have something to gain and lose in this exchange, consulting legal counsel ensures fair compensation. The San Diego employment lawyer at The Gould Firm has years of experience negotiating these agreements and can help determine if you are receiving a fair severance offer.

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What Is Considered Workplace Sexual Harassment in California?

There are generally considered to be two types of sexual harassment. These are quid pro quo sexual harassment and hostile work environment sexual harassment.

Quid pro quo means “this for that”. It occurs when your employer, manager or supervisor may offer you some type of benefit in return for a sexual favor or advance.

A hostile work environment sexual harassment may occur when you are regularly subject to a work environment permeated with sexual overtones that it becomes so uncomfortable that it becomes “hostile”. This can occur when you are subject to things such as unwanted advances, sexual comments, offering benefits in return for sexual favors, sexual and distasteful jokes; and, impeding another employee from freely moving from one place to another.

However, unlike quid pro quo sexual harassment, hostile work environment sexual harassment is rarely an isolated occurrence. Instead, it is typically repetitious and a single sexual advance that was turned down doesn’t necessarily constitute harassment but can in rare cases. Every case of sexual harassment must be examined on a case-by-case basis.



If you have been the victim of workplace sexual harassment or are not sure whether your situation qualifies as sexual harassment, we encourage you to contact us for a free consultation. At the Gould Firm, we use our experience with California employment laws to help determine what your next steps should be moving forward.