Employment law
California and Federal Laws provide many protections and rights to employees against illegal and wrongful treatment by employers. These protective laws tend to be complex in nature. For a simple and straight forward explanation, read Imad Elias’ article, A Quick Working Guideline of Employment Law for the Layman.
As your attorney, Mr. Elias, an expert in employment law, will help you navigate through these complicated laws and ensure that your rights are protected. Additionally, we do not charge you any legal fees unless and until we win your case. We also advance all costs. In other words, if you don’t get paid, we don’t get paid.
If you have any questions, or to schedule a FREE consultation with Mr. Elias, call us at 323-651-4500.
Below is a more technical and detailed summary of the most relevant laws protecting employees.
- Discrimination
- Race
- National Origin
- Religion
- Age
- Gender
- Sexual harassment
- Whistleblower
- Wrongful termination
- Retaliation
- Department of Fair Employment and Housing (DFEH)
- Wages and Overtime Violations – CLASS ACTION
Discrimination
A. Unlawful Discrimination
- Race
- National Origin
- Disability/ Medical Condition
- Religion
- Gender
- Pregnancy
- Sexual Orientation
- Age
In all aspects of employment, an employer cannot discriminate against any and all employees because of RACE, COLOR, NATIONAL ORIGINAL, ANCESTRY, RELIGION, SEX, PREGNANCY , SEXUAL ORIENTATION, GENDER, MARITAL STATUS, AGE (40 or older), PHYSICAL OR MENTAL DISABILITY, MEDICAL CONDITION, GENETIC CHARACTERISTICS and VETERAN STATUS.
These anti-discrimination protections are provided by both state and federal laws which impose on employers the legal obligation to treat employees equally in the hiring, terminating, promoting, disciplining, and many other aspects of employment, without regards to the employee's protected class mentioned above. California provides similar but broader protections to employees than does the Federal laws. California’s anti-discrimination law is derived from the Fair Employment Housing Act, commonly known as “FEHA”.
B. Proving DiscriminationProving discrimination in the workplace is more or less the same whether the discrimination is based on race, age, sex, national origin, or anything else that is illegal.
This is a very basic guide to how discrimination in the workplace cases are proven. Every employment law case is different, which means this basic guide may not apply to every case. (For instance, in disability discrimination in the workplace, other factors, such as "reasonable accommodation" are at issue. A "reasonable accommodation" is when the employer modifies the job duties, provides some extra help, or takes some other measure to ensure that the person can still be able to do the job despite their disability).
First, the employee must show that:
1. he/she is a member of a "protected class", and
2. he/she suffered an "adverse employment action".
The specific categories which are protected are spelled out in particular laws, or statutes, such as the FEHA. Because gender, or sex, is one protected category, all employees, at least the human ones, are protected by at least one category. Many people fall into more than one protected category.
An adverse employment action is any action by an employer that has a negative impact on the employee's job. This can be just about anything relating to someone's job: termination of employment, demotion, unwanted shift change, hour cuts, etc….
C. The EmployerOnce an employee proves the above, the employer must then show that there was a legitimate, non-discriminatory, reason for the adverse employment action. For example: an employer contends that an employee was fired because of “down sizing”, not because the employee was Hispanic. If true, that is a perfectly legal reason to fire someone. Just because the employee is Hispanic does not mean that you can never terminate him/her; it just means that you can't fire him/her because of that employee is Hispanic.
D. Back to the EmployeeOne the employer has offered a legitimate reason for the termination, the employee can then attempt to show that the employer's stated reason was not the real reason that the employer was fired and that the stated reason was simply a "pretext".
In the “down sizing” example, if employee’s position was not eliminated, and if on the same day he/she was fired, the employer hires someone else as a replacement, there clearly was no downsizing. The employer’s reason was “pretext”.
E. It’s The Employee’s Burden of ProofThe employee must come up with some actual proof that there was discrimination in the workplace. Just proving that the employer's reason is pretextual isn't enough.
The law recognizes that a plaintiff will rarely have access to direct evidence of intentional discrimination; therefore, an employee is allowed to prove discrimination through "circumstantial" or indirect evidence.
In our example, the employee might be able to prove that the person who fired her had made statements to her such as “women should be raising kids, not working". This is proof that the person is discriminating against the woman employee precisely BECAUSE she is a woman.
Statistics can be very useful in proving discrimination in the workplace, especially when the company is very large. In those cases, there are large enough numbers to do a real statistical analysis. As an example: a woman applies for a promotion she has is very well qualified for and has deserved. Instead, the company hires a male employee who she finds out, is not nearly as qualified as she is. That alone is not sufficient. There are too many legitimate reasons why she wasn’t selected (poor interview for example). That's a perfectly legal reason not to hire someone.
However, if the woman can show statistically that a high percentage of men have been promoted within the company, while very few if any women have, she might be able to prove her case with statistics.
E. Specific Types of Discrimination
1. PREGNANCY DISCRIMINATION
California and Federal laws explicitly prohibit employers from harassing, demoting, terminating, or otherwise discriminating against employees for becoming pregnant, or for requesting or taking pregnancy leave.
These laws apply to all employers that regularly employed five (5) or more full-time employees in the preceding twelve month period. Female employees who return from Pregnancy Disability leave are entitled to be returned to their same position, unless that position is no longer available due to a legitimate business necessity or reason. In that case, the returning employee is entitled to a comparable position.
Employees who are discriminated against or harassed based on pregnancy or childbirth may be entitled to recover damages for emotional distress, lost wages, punitive damages and attorney's fees.
2. DISABILITY DISCRIMINATIONCalifornia’s FEHA provides much greater protection to disabled employees against Discrimination then does the Federal ADA. This is mostly due to a series of US. Supreme Court rulings interpreting the ADA in terms more favorable to employers. In California, the law protects any individual with a physical or mental impairment that limits their major life activities—such as walking, seeing, hearing, speaking, communicating, and caring for themselves—as long as the employee can perform the essential functions of the job safely and efficiently with reasonable accommodations.
California law require that an employer provide the employee "reasonable accommodations" to allow he/she to meet the basic requirements and duties of the position. Such accommodations cannot, however, result in an undue hardship to the employer or a direct threat to the health and safety of the employee and/or other employees.
In addition, California law requires the employer to engage in an interactive process to find reasonable accommodations for the disabled employee. Failure to engage in this process, in and of itself, constitutes a cause of action for disability discrimination.
3. AGE DISCRIMINATIONThere is some confusion among the public about what Age Discrimination in the workplace means. For instance, many people believe that a cause of action for Age Discrimination exists when an employee is terminated for being “too young”. In fact there is no such cause of action.
California’s Fair Employment and Housing Act (“FEHA”) prohibits an employer from discriminating against any employee simply because that individual is over forty (40) years old. Thus age discrimination only applies to employees over 40!
Proving age discrimination is usually achieved through circumstantial evidence.
Proving age discrimination follows the general proof requirements in all discrimination case. An inference of age discrimination is often raised by showing that the employee:
(a) Is over forty years old,
(b) Was subjected to an adverse employment action (like termination, demotion, suspension), and
(c) Similarly situated employees younger then 40 were treated differently and more favorably.
In addition, an employee may prove age discrimination via statistical evidence, comparative evidence, or direct evidence. Direct evidence, such as discriminatory comments made by the managements or owner, is often the most persuasive. However, in larger companies, it may be possible to use statistical analysis to demonstrate that the employer systematically discriminates against a particular age group (over 40) in hiring, promotions and terminations. Such evidence would raise an inference that the action taken against a particular employee of that race was also infected by prejudice against older employees. Comparative evidence also raises an inference of discrimination by showing that different rules and standards were applied for persons of different races.
Of course, an employer is also prohibited from harassing an employee based on his age (over 40). See discussion on Harassment.
Harassment
Contrary to popular belief, not all form of harassment or general “bad treatment” at work are prohibited by law. In reality, much like discrimination, to be unlawful, harassment in the workplace must be based on one of the following "protected characteristics":
Race,
Color,
National origin,
Ancestry,
Religion,
Sex,
Pregnancy and childbirth,
Sexual orientation,
Gender,
Marital status,
Age (40 or older),
Physical or Mental disability,
Medical condition, or
Veteran status.
Each case is different. Overall, harassment can include all forms of offensive or unwelcome physical or verbal conduct based on any of these factors that interferes with an employee's work or creates an offensive or hostile working environment.
A. SEXUAL HARASSMENTSexual harassment is the most common form of workplace harassment. It is also one of the more complicated areas of employment law.
Under California and Federal law, unlawful sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. The law recognizes three general theories of sexual harassment:
(a) Submission to unwelcome sexual conduct is made a condition of employment, either expressly or impliedly (Example : “sleep with me and you’ll get that promotion”) This is called Quid Pro Quo Harassment.
(b) Employee is threatened with adverse employment actions if employee rejects unwelcome sexual conduct or advances. (Example: “if you don’t sleep with me, you’re fired”. This is also Quid Pro Quo Harassment.
(c) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. This is called Hostile Work Environment Harassment.
Unlike Quid Pro Quo Harassment , under the theory of Hostile Work Environment, an employee doesn’t need to be propositioned by a supervisor or employer (“have sex with me or you’ll be fired”) to prove sexual harassment. Instead, the employee must prove that the sexually harassing conduct was pervasive, continuous or so offensive that it created a hostile work environment that no employee should be forced to suffer in order to be employed.
Examples of sexual harassment include unwelcome sexual propositions or marriage proposals; unwelcome hugging, kissing, or other offensive physical contact of a sexual nature; unwelcome lewd gestures, remarks, or innuendoes; unwelcome discussions of sexual practices or anatomy; and unwelcome sexually offensive posters, photographs, drawings, cartoons, jokes, stories, nicknames, or comments about appearance.
An employer has the obligation to protect employees from unlawful sexual harassment by its employees, as well as by third parties such as vendors and customers. In addition, in California, an employer is strictly liable for the sexual harassment by a supervisor/manager, putting the onus on the employer to give its manager proper and reasonable sexual harassment training.
B. OTHER HARASSMENT: RACE, NATIONAL ORIGIN, RELIGION….Hostile Workplace Environment: Race, National Origin, or Ethnic Discrimination & Harassment
The concept of Hostile Work Environment harassment in order to prove harassment at work because of race, national origin or ethnic background. As in sexual harassment, if you are harassed in the work place because of your race, ethnicity, or national origin you may have the right to sue your employer. Usually, discriminatory intent is at the heart of the harassment. Usually, when there is discrimination there is often harassment in the workplace.
Severe & Pervasive Harassment & Discrimination
The law requires that the harassment in the workplace must be severe and pervasive. Each case is different and whether the conduct was severe and pervasive is dependent on the facts. What the courts have stated is that an idle comment, or a one time joke, even if offensive, cannot on its own be the basis for a claim of harassment. On the other hand, continuous and frequent use of offensive racist language (using the "N" word for instance) could be found to be severe and pervasive by a jury. The determination has to be made on a case by case basis.
Management Involvement:
For an employee to have a claim of harassment against his/her EMPLOYER, management was somehow be shown to have involvement in the harassment as follows:
(a) The offending conduct was carried on by management; or
(b) Management knew that a co-employee was harassing the employee, had an opportunity to stop the behavior and in fact, did not.
Without management knowledge or participation, an employee cannot make a claim against the employer for harassment suffered at the hands of a co-employee. In that case, the employee should report the harassment to management and follow company policy. That way, the employee gives the employer a chance to end the harassment.
Wrongful Termination
"Wrongful Termination" generally refers to a person being fired in violation of law. It can be a misleading terminology because what many people think is "wrongful" is not always illegal. For a layman’s explanation, read Imad Elias’s article.
Presumption of “At Will” EmploymentIn California and most other states, employment is presumed to be "at will". Under the “at will” presumption of law, an employer may terminate an employee for ANY reason. Likewise, the employee can resign for ANY reason.
The law however creates exceptions to this general rule:
1) DiscriminationEmployers cannot terminate an employee because of age, race, sex, national origin, disability, and a variety of other reasons specifically listed in the law. In California, the Fair Employment and Housing Act (or “FEHA”) prohibits termination of employment based on these categories. This act is found in California Code of Government, section 12900 et seq. FEHA provides liberal protection to employees beyond simply those categories. For example, FEHA protects an employee from being fired for complaining about activities that may be in violation of FEHA (even if it turns out later that no such activities have occurred). Employers cannot discriminate against employees for engaging in other protected activities, such as filing workers' compensation claims.
It is against the law, and therefore “WRONFUL” to fire an employee because of one of these factors listed in FEHA. The employee can sue.
2) ContractIf any employee has a contract with the employer, the employee probably cannot be fired without GOOD CAUSE. Contracts can be written or implied.
More About Wrongful Termination
3) Whistle-Blowing"Whistle Blowing" is when an employee informs on his/her employer who is breaking the law. The employee must relate the illegal activity to someone outside the company. It must be a government or law enforcement agency. Employees who notify government or law enforcement agencies of possible illegal activities by their employers are protected by law. If they are fired or otherwise retaliated against for whistle blowing, they can sue. It is not necessary that the employer actually broke the law. The employee could be whistle blowing on something that isn't illegal in the first place. The employee is still protected from retaliation or termination, as long as the employee reasonably believe that he or she is reporting a violation of the law.
4) Violation of Public PolicyAlthough not in any written law, the courts in California have fashioned a Fourth exception to the At-Will employment rule, which protects employees for engaging in legal activities that inure to the public good, or for legally refusing to engage in an illegal activity. For instance, an employer cannot terminate an employee in retaliation for internally complaining of possible violations of OSHA (safety at work) regulations, even if that employee did not complain to outside officials. Safety laws inure to the public in that they protect society’s working employees. The courts have found that it simply offends public policy to allow an employer to fire such an employee under the “At-Will” presumption in law.
