The Brewer Law Office represents clients in most types of employment cases, including cases involving wrongful termination, discrimination, harassment, family and medical leave, religious accommodation, disability accommodation, wage and hour violations, retaliation, trademark issues, and breach of contract. Various types of employment claims and employment laws are generally described below.
Although employees and employers in California are generally free to end the employment relationship "at will," the law does not permit terminating an employee for certain reasons. For example, an employer may not fire an employee because of the employee's gender, race, religion, marital status, disability, sexual orientation, gender expression, pregnancy, age (if over 40), or military and veteran status. California's Fair Employment and Housing Act describes this type of wrongful termination in Government Code section 12940, subdivision (a). Subdivision (h) of that section forbids firing an employee because the employee opposed any practice that the Fair Employment and Housing Act prohibits.
The California Labor Code contains at least 25 provisions that limit an employer's ability to lawfully discharge its employees. For example, an employer may not terminate an employee for being illiterate (while satisfactorily performing the job) (Labor Code section 1044), or for an employee's political beliefs (section 1102), or for refusing to work in unsafe conditions (section 6311). These provisions are enforced by the California Labor Commissioner; some are also enforceable by a civil lawsuit. The Labor Commissioner's website provides further information.
Many other state and federal laws protect employees from termination. An employer's violation of a strong public policy can also serve as the basis for a wrongful termination lawsuit. Contact the Brewer Law Office at 805.719.2731, or submit a form, if you would like to discuss whether you have a claim for wrongful termination.
State and federal laws protect employees from certain types of discrimination. For example, an employer in California may not treat an employee less favorably than others because of the employee's gender, religion, physical or mental disability, age (if over 40), sexual orientation, gender identity or gender expression, pregnancy, marital status, membership in the military, cancer diagnosis, race, national origin, or ancestry.
Visit the California Department of Fair Employment and Housing website for important information about rights and responsibilities under the Fair Employment and Housing Act. The Equal Employment Opportunity Commission (EEOC) website is good resource for information about federal anti-discrimination in employment laws.
Employees in California are entitled to certain key protections in terms of their wages, meal and rest periods, and hours worked. For example, nonexempt employees must be paid 1.5 times their normal wage for every hour worked over eight hours in a day and twice their regular wages for every hour worked over twelve hours in a day. Nonexempt employees must also receive a 30-minute meal period during a five hour shift, and a 10-minute rest break for every four hours worked. Employees who work on a piece-rate basis must receive at least minimum wage and must be paid separately for their rest periods and for time spent at work when they are not working on a piece. Wage and hour law can be complicated, and the Brewer Law Office would be happy to answer specific questions. The California Labor Commissioner's Office is a good resource for getting answers to questions about California wage and hour law. Click here for the Labor Commissioner's website.
The California Family Rights Act and the federal Family and Medical Leave Act require employers of 50 or more people to give their qualified employees up to twelve weeks off for certain reasons. Those reasons include the birth or adoption of a child, and a serious health condition suffered by the employee or the employee's spouse, domestic partner, child or parent. These leave laws can be complicated. The California Department of Fair Employment and Housing is a good resource for questions about CFRA leave. Click here to visit the CFRA page of DFEH website. Click here for a pdf pamphlet prepared by the DFEH about the CFRA. For information about the federal FMLA, visit the FMLA page of the U.S. Department of Labor website. For a pdf pamphlet prepared by the DOL about the FMLA, click here.
In addition to leave taken under the CFRA, female employees in California who become disabled by pregnancy, childbirth or a related condition make take up to four additional months' leave. This leave is protected under section 12945 of the Fair Employment and Housing Act.
California's new Healthy Workplaces, Healthy Families Act requires most employers in California to provide eligible employees with at least three days of paid sick leave per year. Employees may use the leave for themselves or to care for certain family members. Click here to read the Labor Commissioner's FAQ's about this paid leave.
The law in California provides some protection for the privacy rights of employees. For example, an employer may not invade an employee's privacy interests where the employee has a reasonable expectation that those interests will be kept private, and where the privacy invasion is done in a way that seriously breaches social norms. However, such a privacy violation may be justified if the employer has a legitimate and important reason to intrude upon the employee's privacy and cannot do so by less intrusive means. This type of privacy claim requires a balancing of interests on a case by case basis. Examples of privacy invasions that usually require a balancing test are an employer's collection of confidential medical information, randomly drug testing its employees, or monitoring its employees' use of company computers (although a written policy allowing the monitoring of computer use could diminish the employees' expectation of privacy).
A few statutes specifically protect certain workplace privacy rights. For example, California Labor Code section 435 prohibits audio or video recordings of employees in restrooms, locker rooms or changing rooms. Labor Code sections 432.7 and 432.8 prohibit asking job applicants about arrests not leading to conviction, participation in a diversion program, convictions that have been judicially dismissed, or marijuana convictions that are more than two years old. Labor Code section 980 prohibits employers from asking employees or applicants to disclose personal social media passwords. Under California's Confidentiality of Medical Information Act, employers must establish procedures to ensure the confidentiality of employees' medical information.
Other state and federal laws can be invoked for the protection of privacy in the workplace.
Both state and federal law require employers to reasonably accommodate their employees' religious beliefs, observances and practices. Under the California Fair Employment and Housing Act, Government Code section 12940, subdivision (l), where an employee's religious belief or observance conflicts with an employment requirement, the employer must explore reasonable means of accommodating the religious belief, including excusing the employee from the conflicting duty if the employer can reasonably do so. Religious observance includes religious dress and grooming practices as well as taking time to observe a holy day. An employer may not choose an accommodation that would result in segregating the employee from others. An employer may not retaliate against an employee because the employee requested an accommodation. Similar protections exist under federal law. An interesting case on this issue is EEOC v. Abercrombie & Fitch, decided by the U.S. Supreme Court in 2015.
The federal Americans with Disabilities Act and the California Fair Employment and Housing Act, Government Code section 12940, subdivision (m), require employers to accommodate the known disabilities of their employees. The FEHA generally provides greater protections than the ADA. California employers of 5+ people are subject to the accommodation duty.
Physical or mental conditions that limit a major life activity are disabilities that entitle employees to accommodation. The duty to accommodate arises when the employer, including a supervisor, knows of the disability, even if the employee has not formally requested an accommodation. When the employer becomes aware of the need for an accommodation, the employer must initiate an interactive process in which the employer and the employee communicate about the type of accommodation that would work for the employee.
Possible accommodations include the following, among other measures: making the facility accessible; job or schedule restructuring; equipment modification; providing a reader; allowing an assistive animal into the workplace; providing paid or unpaid leave; allowing an employee to work from home; and reassignment to a vacant position. Accommodation is not required for employees who are unable to perform the job even with a reasonable accommodation. Also, the law does not require accommodations that would impose an undue hardship on the employer.
Title 2, sections 11068 and 11069 of the California Code of Regulations describe the accommodation and interactive process requirements under California law. The Department of Fair Employment and Housing website is also helpful.
The U.S. Department of Labor's web page on the Americans with Disabilities Act and the Department of Justice, Civil Rights Division, ADA website are useful resources on the federal law.
Many statutes, both state and federal, protect employees who "blow the whistle" on an employer's wrongdoing. Five types of whistleblowing protections are described below. The U.S. Department of Labor, Occupation Health & Safety Administration's Whistleblower Protection Programs web page is good resource for learning about most federal laws that provide whistleblower protection.
False Claims Whistleblowing (Qui Tam Actions). The California False Claims Act and the federal False Claims Act prohibit knowingly submitting a false or fraudulent claim for payment to the government. Employees who believe an employer is presenting fraudulent claims may report the employer to the government agency or may take action to stop the employer from presenting the false claims. An employee may also bring a case, called a qui tam action, against the employer on behalf of the employee and the government agency. A qui tam action is one of the government's methods of enforcing the FCA. The procedures governing qui tam actions are complicated, and legal assistance is necessary to understand and follow them. Employers may not retaliate against an employee because the employee brought a qui tam action or took other action to stop the employer from presenting fraudulent claims.
Reporting an Employer's Unlawful Conduct. Under California Labor Code section 1102.5, an employee who reasonably believes that his or her employer is violating the law may disclose information about the violation to any of the following: a) a government or law enforcement agency; b) the employee's supervisor (or other person with authority over the employee); or c) a compliance officer within the company (or any employee with authority to investigate and correct the violation). The employer may not prevent an employee from making such a disclosure and may not retaliate against an employee who does so. The employer may not retaliate against an employee for making such a disclosure in a former job or because the employee's family member has made, or is perceived to have made, such a disclosure.
Health Care Facilities. California Health & Safety Code section 1278.5 protects employees of health care facilities who report suspected unsafe patient care or conditions. The Legislature encourages this reporting in order to protect patients and to assist accreditation and government entities charged with ensuring that health care is safe. Employers may not retaliate against employees or members of the medical staff who complain to the facility or to a government or accrediting agency about patient care or facility conditions.
Employee Safety. California Labor Code section 6310 protects employees who "blow the whistle" by complaining to certain government agencies about unsafe working conditions or practices. Employers may not retaliate against employees for engaging in such activity, or because an employee's family member engaged in such activity. Federal law also protects against retaliation for complaining of unsafe conditions. The Occupation Health & Safety Administration's Whistleblower Protection Programs web page is good resource for learning about federal protections.
Securities Fraud. Section 1514A of the federal Sarbanes-Oxley Act (SOX) prohibits an employer whose securities are publicly traded from retaliating against an employee for reporting employer conduct that the employee reasonably believes constitutes mail, wire, securities or bank fraud, or violates securities regulations.
In addition to whistleblower protections, the law prohibits retaliation against employees who engage in other types of protected activity. For example, California employers may not take adverse action against an employee because the employee opposed practices forbidden by the Fair Employment and House Act, such as race discrimination or sexual harassment. Read section 12945 of the FEHA, especially subdivisions (h), (l)(4) and (m)(2), for more information. Federal law affords similar protections. Visit the EEOC website for more information.
Many other employee activities are protected from retaliation. Here are a few examples. California Labor Code section 98.6 forbids retaliating against an employee for filing a complaint about any right under the Labor Commissioner's jurisdiction, for complaining about unpaid wages, or for exercising any other protected right. The Labor Code also prohibits retaliation for refusing to work in an unsafe environment, using legally protected paid sick time, discussing wages, taking time off to serve as a volunteer firefighter, taking time off to testify about certain criminal matters, invoking rights under the Equal Pay Act, holding particular political views, discussing working conditions, filing or intending to file a worker's compensation claim, and taking time off to appear at a child's school relating to the child's suspension. California Business and Professions Code section 2056 forbids retaliating against physicians who advocate for appropriate medical care for their patients.
The examples listed here are a few of many. Submit a form if you would like to consult the Brewer Law Office about a potential retaliation case.
Employers in California must take all reasonable steps necessary to maintain a workplace free from unlawful harassment. Harassment of an employee, an applicant, a volunteer, or an independent contractor is unlawful if it is done for any of the following reasons: race, religious creed, color, national origin, ancestry, physical disability, mental disability, cancer-related medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. An employer who knows, or should know, that such conduct is occurring, even if the harassment is done by a customer, vendor or other non-employee, must take immediate and appropriate corrective action to stop the harassment.
Pervasive harassment can place an employee under severe strain and can take many forms, including the following: verbal epithets, insults, derogatory comments, taunting, rumor-mongering, repeated romantic overtures, sexual comments, sexual or derogatory jokes, questions relating to sexual relationships, shunning, physical harassment such as unwanted touching, assault, physical interference with movement, throwing objects, and visual harassment such as derogatory cartoons, drawings or posters, lewd gestures or leering. When such conduct is based on any of the characteristics listed in the paragraph above, it it under lawful under section 12945, subdivisions (j) and (k) of the Fair Employment and Housing Act.
Termination in Breach of Contract. Where an employment contract is for a specified period of time, an employer may not, absent an employee's willful breach of duty, discharge the employee before that period ends. Where an employment contract requires good cause to terminate an employee the employer may not discharge the employee absent good cause. However, without a "good cause" agreement, employees in California may be terminated without a reason.
Other Breaches. Both parties to an employment contract must abide by the terms of their agreement. Contract claims, however, can be complicated due to the "at will" nature of the relationship.
Fraud. Claims for fraud sometimes arise in the context of an employment relationship. For example, an employer who induces a person to leave a job and enter an employment relationship with the employer, and does so by misrepresenting facts or by making promises the employer has no intention of performing, may have committed actionable fraud.
After an employment relationship ends, disputes sometimes arise over an employee's right to use the inventions or intellectual property he or she developed before or during employment. Of course, employees may not, without permission, use inventions or trade secrets belonging to their former employers. However, the law and facts in such situations can be complicated. Where both parties claim a right to employee-developed intellectual property, court intervention is sometimes necessary to determine the parties' rights, even before injury occurs.