Practice Areas

Employment Law

Whether you are an employer concerned about legal compliance or employee who feels they were wrongfully terminated, sexually harassed, or discriminated against, we have a complete understanding of the various federal and state laws that keep you protected.

    WRONGFUL TERMINATION

    It is illegal for your employer to fire you:

    • because of your real or perceived race, gender, disability, medical condition, age, ethnicity, religion, military/veteran status, or sexual orientation, among other protected characteristics;
    • because you engaged in protected activity, which includes but is not limited to reporting or opposing discrimination or harassment in the workplace, reporting or refusing to engage in illegal conduct, or taking or requesting certain protected leaves of absence like military leave or FMLA leave;
    • in violation of a written or oral employment contract.

    In order to prevail on a wrongful termination claim based on a discrimination or retaliation theory, an employee must produce evidence showing that their protected characteristic or protected activity was at least a substantial motivating reason, although not necessarily the only reason, for the employer’s termination decision. Such evidence often includes direct written or oral statements of the employer or its agents, instances of similar discrimination or retaliation in the workplace, the timing of the adverse action, and/or a showing that the employer’s cited reason for the termination lacks credence.

    The type and extent of remedies available to an employee in a wrongful termination case depends on numerous factors, but often sought remedies include past lost wages, future lost wages, compensatory damages for pain and suffering and attorneys fees and costs. Depending on the facts and legal claims in the case, punitive damages may be available. Additionally, under the Fair Employment and Housing Act (FEHA) and other statutes, while not commonly exercised, the Court has the power to issue injunctive and equitable relief, for instance ordering reinstatement of a wrongfully terminated employee.

    EMPLOYMENT DISCRIMINATION

    It is illegal for covered employers to subject an employee or job applicant to an adverse action because of a protected characteristic, or to retaliate against the employee or applicant because they have complained of or opposed discrimination or harassment. The Fair Employment and Housing Act (FEHA) prohibits discrimination on the basis of the following protected categories:

    • Race, color
    • Ancestry, national origin
    • Religion, creed
    • Age (40 and over)
    • Disability, mental and physical
    • Sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions)
    • Sexual orientation
    • Gender identity, gender expression
    • Medical condition
    • Genetic information
    • Marital status
    • Military or veteran status

    When an employer subjects an employee or job candidate to an adverse employment action because of their real or perceived protected status, or because of their association with a person in a protected status, this constitutes unlawful discrimination.  An adverse employment action is a single action taken by your employer, or pattern of conduct your employer engages in, that materially and adversely affects the terms, conditions, or privileges of employment.  

    Some classic adverse employment actions are terminations, demotions, pay reductions, refusals to hire, failures to promote and suspensions. But an adverse action does not have to come in one swift blow, like a termination or demotion. It can be a series of smaller actions that when viewed together materially and adversely alter the terms and conditions of employment.  

    Employers engaging in unlawful discrimination often avoid a termination or demotion, opting instead for a death by a thousand pin pricks approach, believing this is a way to avoid legal accountability for their discriminatory behavior. But fortunately this is not always the case.  

    One particular category of disability discrimination that is often encountered in the workplace relates to an employer’s failure to provide a reasonable accommodation for a qualifying disability. Relatedly, employers are under a separate and distinct obligation to engage in a good faith interactive process with the employee in order to explore possible accommodations. An employer’s failure to engage in a good faith interactive process in pursuit of accommodation can give rise to a discrimination claim even if reasonable accommodation is ultimately determined not possible. And it is illegal for an employer to retaliate against an employee who requests reasonable accommodation. 

    The type and extent of remedies available to employees in discrimination cases depend on numerous factors, but often sought remedies include  past lost wages, future lost wages, compensatory damages for pain and suffering and attorneys fees and costs. Depending on the facts and legal claims in the case, punitive damages may be available.

    Additionally, under the Fair Employment and Housing Act (FEHA) and other statutes, while not commonly exercised, the Court has the power to issue injunctive and equitable relief, for instance ordering the promotion of an employee in a failure to promote case.   

    SEXUAL AND OTHER FORMS OF HARASSMENT

    Sexual harassment takes many forms, but often includes one or more of the following: 

    • Unwelcome sexual advances or propositions
    • Visual or verbal sexual conduct, like inappropriate jokes or discussions of a sexual nature
    • Inappropriate comments, including unwelcome compliments, about someone’s body or clothes
    • Sexual gestures or displaying sexual pictures or other objects 
    • Inappropriate staring 
    • Unwelcome touching
    • Conditioning or offering employment benefits or advancement on participation in sexual  or romantic activities, like a date
    • Threatening retaliation in the workplace for refusal to engage in a sexual or romantic relationship 

    The Fair Employment and Housing Act (FEHA) protects employees who are the victims of sexual harassment in addition to those employees who report the sexual harassment of others.  FEHA protects both women and men from sexual harassment, and it also prohibits same-sex sexual harassment.  

    The severity and pervasiveness (frequency) of the harassing conduct is a determining factor in the court’s evaluation of sexual harassment claims. If the severity of the harassment is high—for instance, it involves physical touching—one or fewer instances might suffice to support a claim.  But courts generally require more frequent occurrences of less severe instances of harassment for a claim to proceed.

    The law also prohibits harassment based on other protected characteristics including real or perceived race, ethnicity, national origin, gender, disability, medical condition, sexual orientation, age and military/veteran status.

    Harassment claims of a non-sexual nature are often premised on similar conduct, ranging from harmful or offensive touching to the use of offensive language, slurs and jokes in the workplace. Like sexual harassment claims, Courts will evaluate the severity and pervasiveness of the harassment to determine whether the workplace has become sufficiently hostile to support a harassment claim. 

    Victims of harassment may seek damages for pain, suffering and emotional distress, in addition to past lost wages and future lost wages if resulting from the harassment or any related discriminatory action and attorney’s fees and costs.  Depending on the position of the individual harasser and the actions taken by the employer–or the employer’s failure to act–often both the individual harasser and the employer are named in the suit.  Punitive damages can also be assessed.

    RETALIATION / WHISTLEBLOWER

    Retaliation against employees who engage in protected activity, which includes but is not limited to reporting or refusing to engage in illegal conduct, violates the law.

    Whistleblower laws protect employees in both the public and private sector. A wide range of actions can constitute protected activity but generally reporting, testifying about or refusing to engage in the following will typically constitute protected activity under one or more laws:

    • Violations of state or federal law, local rules like city ordinances or municipal codes, or regulations
    • Violations of safety regulations
    • Defrauding customers, the IRS or the public 

    Additionally, public employees do not lose their right to free speech simply because they agree to work for a state, local or federal employer. While the government generally has more power to restrict its employees’ speech rights than the speech of private citizens, this power is by no means absolute.

    Public employees who are retaliated against for engaging in speech as a private citizen on a matter of public concern may have a claim for First Amendment retaliation. The context and content of the speech must be evaluated to determine if it is protected by the first amendment.  If the speech is protected, just like any retaliation case, an employee must prove that the adverse action suffered was motivated by their protected speech.

    In First Amendment cases, the court will evaluate whether the government employer’s interest in efficient operations outweighs the employee’s interest in speaking. Government employers often defend these claims by asserting that they would have taken the challenged action regardless of the employee’s First Amendment activity.  It is important to remember that even if speech by a government employee is not protected by the First Amendment, it may still classify as protected activity under one of several whistleblower protection laws. 

    If you are aware that your employer is engaging in illegal or otherwise improper conduct and are considering reporting it internally or to an outside agency, or if you believe that you may already be suffering from retaliation for engaging in protected activity, contact us.

    WAGE AND HOUR VIOLATIONS

    California and Federal law provide wage and hour protections to eligible California employees. Employer violations that cost you money can include but are not limited to:

    • Failure to pay the minimum wage
    • Failure to pay overtime or double time to eligible non-exempt employees
    • Forcing employees to work “off the clock”
    • Failure to pay the prevailing wage on qualifying government contracts
    • Misclassifying an employee as exempt from overtime protections when the employee’s salary or duties disqualify them from such exemption
    • Misclassifying an employee as an independent contractor
    • Denying employees rest or meal breaks and not paying the associated premium pay for missed rest or meal breaks
    • Improper calculation of the regular rate of pay
    • Not paying employees for earned vacation time
    • Not reimbursing employees for certain work-related expenses
    • Withholding earned commissions and bonuses
    • Failure to timely pay all wages due upon separation (“waiting time penalties”)
    • Failure to pay wages in violation of a collective bargaining agreement

    Further, it is illegal for employers to retaliate against employees who assert their rights under the California Labor Code and/or Fair Labor Standards Act (FLSA).  Depending on the violation and particular facts, remedies for wage and hour violations can include recovery of the wages owed, interest, liquidated damages, penalties, and attorney fees and costs of suit along with penalties assessed against the employer.

    FAMILY AND MEDICAL LEAVE

    Under both state and federal law, covered employees are eligible to take up to 12 weeks of unpaid job-protected leave per year for health and family reasons. The Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) afford this protection, making it illegal to deny qualifying FMLA/CFRA leaves and to discriminate or retaliate against an employee for taking such leave.

    FMLA/CFRA leave can be taken (1) for an employee’s own serious health condition; (2) so that an employee can care for a spouse, child or parent with a serious health condition; (3) for the birth of a child or to care for a newly adopted or fostered child.

    Under the FMLA, eligible employees are those who have been with their employer at least one year and have worked at least 1,250 hours. The FMLA applies to all private-sector employers with 50 or more employees within a 75-mile radius. There are several distinctions between the FMLA and CFRA, one significant one being that CFRA was recently amended to cover private employers in California with only five or more employees, significantly expanding its reach.

    FMLA/CFRA leave is protected, meaning that an employee cannot be terminated or otherwise retaliated against for having taken a leave during the leave or after they return to work. And employers cannot deny or interfere with the right to take protected leave.

    California also provides legal protections for eligible parents to take parental leave before and following the birth of a child.

    BREACH OF EMPLOYMENT CONTRACT

    Most employment in California is “at-will”, however, some employment relationships are governed by a contract entered into between the employee and employer. Depending on the facts, sometimes an employer’s conduct in breaching an employment contract, or otherwise, can also give rise to a cause of action for fraud and/or related torts.

    Breach of employment contract claims often arise when the employer terminates the employee before the term specified in the contract, terminates the employee for reasons not allowed by the contract, or fails to pay the compensation called for by the contract. A cause of action for fraud can arise when the employer made knowing and material false claims on which the employee reasonably relied to their detriment, for instance, to induce an employee to enter an employment contract.

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