Employment law is all about protecting workers and making sure that workers are not being treated unfairly or taken advantage of by their employers.

Wage and Hour

California wage and hour laws include different regulations regarding the minimum wage, overtime pay, and meal/rest breaks, among other things.  Many of the employee lawsuits that are brought against employers in this state involve wage and hour laws.

Many employers fail to pay their employees the correct amount of overtime. Note that non-exempt employees may not waive their right to receive overtime. Under California law, employees must receive one-and-a-half times their regular rate of pay for hours worked in excess of eight hours within one day and twice the regular rate of pay for those hours that are in excess of twelve hours within one day.

Many employers also intentionally misclassify workers as “independent contractors” as opposed to W-2 employees to avoid paying their workers minimum wage and overtime. Intentional misclassification is a serious violation under California law and carries very harsh penalties. The difference between an “independent contractor” and a W-2 employee is not always clear, but the distinction boils down to how much control the employer has over the work of the employee.

Wrongful Termination

California is an “at-will” state. This means that the default rule in California is that an employer can terminate an employee at any time and for any reason, as long as the reason is not an illegal one. Wrongful termination cases come in two flavors: 1) wrongful termination in violation of public policy; and 2) wrongful termination based on a protected characteristic, such as race, age, religion, etc.

For wrongful termination cases in violation of public policy, the employee must prove that he or she was terminated for:

1. Refusal to violate the law or perform an act that is illegal;
2. Performance of a statutory obligation or report;
3. Exercising a statutory privilege or right; or
4. Reporting of an alleged violation of a statute that is of public importance to either an appropriate governmental entity or to supervisors (this is known as “whistleblowing”)

In wrongful termination cases based on a protected characteristic, the employee must prove that the employer terminated him or her because, for example, he or she was over 40 years old or because he or she was a particular race. The latter is basically a form of discrimination.

The employee who has been wrongfully terminated may seek additional damages beyond his or her lost salary or wages. This includes punitive damages when there has been extreme wrongdoing as well as damages for anxiety and emotional distress.

Sexual Harassment

Sexual harassment is prohibited under both federal and California law. Under federal law, this is covered by Title VII of the Civil Rights Act. Sexual harassment is considered to be a form of sex discrimination. In the state of California, such claims are handled by the Department of Fair Employment & Housing (“DFEH”).

Sexual harassment can take various forms. This includes the following:

• Communications that are offensive in nature, in regard to an individual’s clothing or body, as well as the telling of sexually explicit jokes or stories, leering or ogling looks, exposure to sexual materials such as photos or graffiti, and whistling or catcalls.
• Contact that is sexual in nature, including hugging, touching, or brushing against someone’s body.
• Implicit or more explicit requests or suggestions to engage in sexual activity.

There are two kinds of sexual harassment cases in California: 1) Quid pro quo sexual harassment and 2) Hostile work environment sexual harassment.

Quid pro quo sexual harassment occurs when, for example, a supervisor offers a raise in exchange for a sexual favor or when the supervisor threatens to punish the employee for not complying with the supervisor’s sexual demands.

Hostile work environment sexual harassment involves repeated conduct on the part of a co-worker or supervisor, which makes the work environment hostile, intimidating, and difficult for the victim of the sexual harassment.

When sexual harassment occurs, there are various actions that can be taken by the victim. The victim may consider doing the following:

• Directly tell that harasser that this conduct is not welcome, and that it must end. If the person did not realize that the behavior(s) exhibited was offensive, further harassment could be prevented.
• Report the conduct to Human Resources or upper management.
• Document the conduct, including the nature and context of the incidents, times, dates, places and even witnesses to the incidents.

Where to Go to File a Complaint Regarding Sexual Harassment:

A sexual harassment victim can go through his or her employer’s grievance system in order to file a complaint. A victim can also file a report with the appropriate federal (“EEOC”) and/or state agencies (“DFEH”). Along with these, a victim may want to reach out to an employment law attorney. This should be the victim’s immediate step if the conduct does not stop after reporting it to the employer or the appropriate federal or state agencies.

Discrimination/Harassment

Employers in California are not allowed to discriminate against their employees based on:

• Sexual orientation
• Age
• Race/color
• Religion or creed
• Family status
• Mental disability
• Physical disability
• Medical condition
• Pregnancy condition
• Ancestry

If the employer refuses to hire or fires an individual based on one of the above conditions, it may be considered discrimination. In the state of California, those employers who have less than five full-time employees are exempt from certain forms of discrimination.

Discrimination can also include harassment, such as slurs, intimidation, or other similar conduct because of an employee’s protected characteristic, such as the ones listed above. Employers may be on the hook for an employee’s discriminatory or harassing conduct if the employer knew or should have known about the conduct and failed to take reasonable steps to stop and/or prevent the conduct.

Remedies for violations of Anti-Discrimination Laws”

There are several remedies when it comes to discrimination claims. This can include any of the following:

• Emotional distress damages
• Punitive damages (to compensate the employee and punish and deter the employer)
• Interest on monetary amounts that have been lost by the individual
• Future and/or back pay
• The costs involved in pursuing the lawsuit and/or fees for an attorney
• Reinstatement of employment

Note that there are strict deadlines for the filing of employment claims, especially claims involving discrimination or harassment, including sexual harassment or wrongful termination based on a protected characteristic.  Before you can file a lawsuit in court, you must first exhaust your administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the wrongful conduct and obtaining a “right to sue” notice. Generally speaking, you have one year from the date you receive your “right to sue” notice to file a lawsuit in court.