The California Fair Employment and Housing (“FEHA”) prohibits discrimination on the basis of age. In order to prove a claim for discrimination claim under the FEHA, a plaintiff must demonstrate the following: (1) they were over forty years of age at the time the discrimination occurred; (2) they were performing competently in the position their held; (3) they suffered an adverse employment action, such as a termination, demotion or denial of an available job; and (4) some other circumstances suggesting discriminatory motive. See Guz v. Bechtel National, Inc.(2000) 24 Cal. 4th 317. Age discrimination occurs when an employee is treated less favorably due to their age. An employee can be treated less favorably at any stage of the employment process including when they are hired or terminated. However, it's important to note that it is not illegal for an employer to treat older worker more favorably as compared to younger ones. Learn more about age discrimination here.
Contact UsCalifornia employees are protected against disability discrimination both federally, under the Americans with Disabilities Act ("ADA"), and at the state level under the California Fair Employment and Housing Act (“FEHA”).
Under the ADA disability discrimination occurs when an employee is treated less favorably because of their disability. The ADA protects the disabled as well as those with a history of disability. In addition, the law also protects those who have relationships (e.g. husband-wife, parent-child) with disabled individuals. Discrimination is prohibited in all such instances. Read more about the ADA here. (https://www.eeoc.gov/laws/types/disability.cfm)
The FEHA is substantially similar to the ADA in that it protects employees from being discriminated against on the basis of their disability.
A prospective plaintiff must demonstrate: (1) they suffers from a disability; (2) they can perform the essential functions of their job with or without reasonable accommodation; (3) they were subjected to an adverse employment action, such as a termination, demotion or denial of an available job; and (4) the adverse action was as a result of their disability. Brundage v. Bank (1997) 57 Cal. App. 4th 228, 236.
California law defines "physical disability," broadly and includes physiological conditions which affect the neurological or musculoskeletal body systems and which limit a major life activity. In fact, disability protections under FEHA even extend to "perceived" physical disabilities.
Whether under the ADA or FEHA, in dealing with a disabled employee, the employer has a duty to engage in a back-and-forth conversation with the employee, referred to as the "interactive process". Following such conversations the employer must "reasonably accommodate" the employee. These duties are taken very seriously and lie at the center of protecting disabled employees. As one court put it, "[t]he interactive process is at the heart of the ADAs process and essential to accomplishing its goals. It is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing 'undue burden' on employers." Barnett v. U.S. Air, Inc. (9th Cir.2000) 228 F.3d 1105
Under the law, a reasonable accommodation is any such accommodation that can be made for a disabled employee that will allow them to perform their position notwithstanding the fact that they are disabled. Often times the exact nature of a reasonable accommodation will be based off the disabled employee's treating physician's recommendations. For example, the employee's doctor may proscribe the employee from lifting items above a certain weight or standing for long periods of time because of their disability.
Under both federal and state law an employer is required to adhere to such reasonable accommodations unless they can demonstrate that either (1) the proscribed activity is part of the "essential functions" of the position or (2) the reasonable accommodations would constitute an "undue hardship". An essential function is such an activity that is so intertwined within the employee's position such that they simply must be able to perform that task if they are able to perform the position.
Contact UsThe California Fair Employment and Housing (“FEHA”) prohibits discrimination on the basis of gender. A prospective plaintiff must prove that they were qualified for the position they were performing, they suffered an adverse employment action, such as a termination, demotion or denial of an available job, and the circumstances suggest a discriminatory motive. Guz v. Bechtel National, Inc.(2000) 24 Cal.4th 317.
When determining whether "adverse action" has occurred the law mandates that the unique circumstances of the affected employee, as well as the context of the particular workplace must be taken into consideration. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1052.
Contact UsThe California Fair Employment and Housing (“FEHA”) prohibits discriminating against an employee because of pregnancy, including childbirth and/or medical conditions related thereto.
In order to prove a claim for pregnancy discrimination an prospective plaintiff must demonstrate that they were: (1) pregnant; (2) performing competently in her position; (3) suffered an adverse employment action, such as a termination, demotion or denial of an available job; and (4) the circumstances suggests the adverse action was as a result of discriminatory motive." Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 355.
When determining whether "adverse action" has occurred the law mandates that the unique circumstances of the affected employee, as well as the context of the particular workplace must be taken into consideration. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1052.
Contact UsThe California Fair Employment and Housing (“FEHA”) prohibits discrimination on the basis of race and national origin. In order to prove a claim for discrimination claim under the FEHA, a plaintiff must demonstrate that they were performing competently in their position, they suffered an adverse employment action, such as a termination, demotion or denial of an available job, and the circumstances suggest a discriminatory motive. Guz v. Bechtel National, Inc.(2000) 24 Cal.4th 317.
Certainly, discrimination may be proven through direct evidence. However, in today's world its rare to find a "smoking gun" directly pointing to discrimination. More commonly, where there is no direct evidence of a discriminatory motive, a plaintiff can seek to prove their claim through "circumstantial evidence". Circumstantial evidence is non-direct evidence that is nevertheless sufficient enough to raise an inference of discrimination. If a plaintiff can indirectly establish an inference of discrimination then the employer must demonstrate a nondiscriminatory justification for the conduct or face liability.
Contact UsThere are three major statutes that protect employees through the provision of leaves of absences from work. Federal law provides for pregnancy-related leave under the Federal Family Medical Leave Act ("FMLA") while California provides for leave under the Pregnancy Disability Leave Law ("PDLL") and the California Family Rights Act ("CFRA").
It's critically important to understand how these three laws overlap and interact to provide a robust set of protections and options for California employees. Below is but a brief introduction to these laws and the protections they afford.
Federal law prohibits employers from interfering with, restraining, or denying the exercise of any right under the Family and Medical Leave Act, including the right to take pregnancy-related leave. 29 U.S.C. § 2615(a)(1).
The FMLA provides that eligible employees are entitled to take up to 12 weeks of leave in any 12-month period due to a serious health condition, and that the employee is entitled to be restored to the same or an equivalent position following her leave. 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1).
Federal law also prohibits employers from disciplining or discharging an employee because she has exercised her right to take FMLA leave, or from using such leave as a negative factor in an employment decision. 29 C.F.R. § 824.220(c).
Federal law also requires that employers provide notice to employees of their eligibility to take FMLA leave within five days of the time the employer becomes aware that the employee may need leave for FMLA-qualifying reason. Failure to follow the notice requirements may constitute interference with, restraint, or denial of the exercise of an employee’s FMLA rights. 29 C.F.R. § 825.300.
Learn more about the FMLA here.
California Pregnancy Disability Leave Law (“PDLL”) [Cal.Gov’t Code §12945(a)] makes it unlawful for an employer “to refuse to allow a female employee disabled by pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months and thereafter return to work, as set forth in the commission’s regulations.”
Learn more about the PDLL here
Contact UsNo individual wants to face harassment. Especially at work. However, California law does not protect against all forms of harassment. In order for harassment to be considered unlawful, the harassment must have occurred on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave, and/or retaliation for protesting illegal discrimination.
In order to prove a case of harassment under California law a plaintiff must show they are (1) a member of a protected class, (2) they were subjected to unwelcome harassment, (3) the harassment was based on a characteristic found within the protected class, and (4) the harassment was severe enough or sufficiently pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive work environment. Thompson v. City of Monrovia (2010) 186 Cal. App. 4th 860, 876.
Below are some specifics regarding harassment that California employees should make themselves aware of.
In a recent California Supreme Court case, the court held that biased personnel actions can play a role in harassment claims by: (1) contributing to harassment by communicating a hostile message, and (2) evidencing discriminatory animus on the part of those engaging in offensive behavior. See Roby v. McKesson (2009) 47 Cal. 4th 686.
A single incident of harassment may, in some instances, be sufficient to support a harassment claim depending upon its severity. See Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 878 ("the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct"); Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.4th 1403, 1421 (physical groping of plaintiff by itself constitutes actionable conduct); Hughes v. Pair (2009) 46 Cal.4th 1035, at 1049 (isolated incident may qualify as "severe" when it consists of physical assault or threat thereof).
The status of the harasser relative to the aggrieved employee is relevant to determining whether harassment exists. To that end, supervisors, or those who are able to exert control over the harassed employee are subjected to a heightened standard. "Thus, a single incident of harassment by a supervisor," may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim." Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, at 927, fn. 9; Quantock v. Shared Mktg. Services, Inc. (7th Cir. 2002) 312 F.3d 899, 904 (company president's propositioning of plaintiff on single occasion deemed sufficient to give rise to a claim for harassment); Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.4th 30, 35 (single ethnic slur by supervisor creating abusive working environment).
Under the law, an employer "shall take all reasonable steps to prevent harassment from occurring." Government Code § 12940(k). It is unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. As such, if the employer fails to take such reasonable steps, the employee would have a separate, distinct cause of action for failure to prevent harassment.
One such reasonable step, and one that is unquestionably required in order to ensure a discrimination-free work environment, is a prompt investigation of the discrimination claim.
Learn more about harassment here
Contact UsClaims for retaliation comes in many forms and may be based on the California Fair Employment and House Act ("FEHA"), the California Labor Code, and whistleblower protection statutes.
A plaintiff employee can establish a case of retaliation under the California Fair Employment and House Act ("FEHA") by demonstrating that (1) the plaintiff engaged in protected activity, (2) the employer retaliated with an adverse employment action against the plaintiff, and (3) there is a casual link between the protected activity and the adverse employment action. See Yanowitz v. L'Oreal USA. Inc. (2005) 36 Cal. 4th 1028, 1042.
There are a number of activities that are legally protected including the right of the employee not to be compelled to commit an illegal act, the filing of complaints against the employer, whether they be internal (i.e. within the company) or external (i.e. in an administrative or judicial setting).
Examples of adverse employment actions include increasing work hours, retaliatory demotions, [terminations](link to wrongful termination), pay decreases, job or shift reassignments, denial of leave, denial of promotions, and refusals to [reasonable accommodate](link to disability discrimination section on reasonable accommodations).
California Labor Code § 98.6 prohibits retaliation against an employee for “the exercise by the employee ... on behalf of himself, herself, or others of any right afforded him or her.” See Labor Code §98.6(a); Grinzi v. San Diego Hospice Corp. (2004) 120 Cal. App. 4th 72, 86-88. Included within these bundle of rights are [wage and hour](link) laws such as minimum and overtime wage regulations and rest and meal break allowances.
See Whistleblowing
Contact UsThe California Labor Code affords a significant number of protections, safeguards, and rights to California Employees. Below is an introduction to some of the most common wage and hour claims employees may bring against their employers under the Labor Code.
Defendants were required to compensate it’s employees for all hours worked upon reporting for work at the appointed time stated by the employer pursuant to Industrial Welfare Commission Order 4-2001, California Code of Regulations, Title 8, § 11040. When Plaintiff’s employment with Defendant ended in or around July 24, 2013, Defendants were obligated to provide him with all earned wages as required by the foregoing Wage Order and Labor Code § 202.
Defendants have willfully refused to pay Plaintiff his wages and still continues to refuse to pay Plaintiff’s wages as required by Labor Code Section 203. As a result of said violations, Plaintiff is entitled to Labor Code Section 203 penalties, equaling to thirty (30) days wages.
Other than some employees who are exempt from the minimum wage law, any individual paid below the minimum wage is entitled to damages for unpaid minimum wages.
Learn more about minimum wage here
For a history of the California minimum wage Click here
The Labor Code requires employers to pay employees an overtime premium. The overtime premium is calculated at one and one-half (1 ½) times the regular rate of pay for hours worked in excess of forty (40) hours per week and over eight (8) hours per day, or the first eight hours on the seventh consecutive workday.
Additionally, double time compensation is required for all hours worked in excess of twelve (12) hours per day, or any work performed after the eighth hour on the seventh consecutive workday.
Read more about overtime laws here
The Labor Code requires employers to, semi-monthly or at the time of each payment of wages, furnish each employee with a statement itemizing, the total hours worked by the employee.
Contact UsBoth federal and California law protect against whistleblower retaliation. In the simplest terms, whistleblower retaliation occurs when an employee is punished for reporting certain activities.
Below is an introduction to various forms of whistleblowing:
Under California Labor Code § 1102.5, an employee may not be retaliated against for reporting unlawful conduct to their employer. In order to establish whistleblower retaliation a prospective plaintiff must demonstrate that: (1) they were an employee; (2) they reported what they reasonably believed to be unlawful conduct to either a government agency or to their employer; (3) their employer subjected them to adverse employment action, such as a termination, demotion or denial of an available job; (4) the disclosure of information was a substantial motivating reason for the employer's decision to take such action; and (5) they suffered harm as a result. See McVeigh v. Recology San Francisco (2013) 213 Cal. App. 4th 443, 468
Section 1102.5 was recently expanded beyond its prior form to now protect employees from retaliation for making internal complaints or even potential complaints about suspected violations of federal, state or local law. Previously, California protected employees from retaliation for reporting reasonably suspected violations of state or federal laws to a government agency. The expanded law, now provides whistleblower protections to employees who report behavior that they reasonably believe to be illegal to a supervisor or other employee with authority to “investigate, discover or correct,” or to a “public body conducting an investigation, hearing or inquiry.” Thus, under the new law, any complaint made to a supervisor or other employee with authority to “investigate, discovery or correct” that relates to allegedly unlawful conduct may trigger the protection of California’s whistleblower statute.
California Labor Code § 6310(b) prohibits an employer from taking adverse action against an employee for making a complaint about workplace safety. To prevail on a claim of retaliation under, a prospective plaintiff must show that they: (1) made complaints about workplace safety to their employer; (2) the employer subjected them to an adverse employment action; and (3) there exists a causal link between the protected activity and the employer's action. Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1453.
Notably, a plaintiff does not need prove that the workplace conditions were actually unsafe. Rather, the employee must only show that their complaints about workplace safety were made in good faith.
Contact UsIn the most basic sense, wrongful termination means that an employee has been terminated in violation of their legal rights. Although California is generally an "at-will" employment state where employers can terminate their employees without justification certain qualifications do in fact apply.
A termination is wrongful if the firing is considered in violation of public policy i.e. that society (and the law) has recognized that in particular circumstances termination should not permitted. For example, an employee cannot be fired for refusing to do something illegal, in retaliation for engaging in protected activity, or for asserting a claim under wage and hour laws
Under the California Fair Employment and House Act ("FEHA") wrongful termination exists where the termination is as a result of discrimination on the basis of age, race/national origin, gender, pregnancy, sexual orientation, disability, marital status, or religion.
Contact Us