Employment Law

Employment law is very fact intensive and every case is different and unique.  The below is a very broad overview of just some of the issues that come up in an employment law case.  You need to speak with an attorney immediately if you feel that you have been harassed, discriminated against, treated differently, or any other conduct that does not feel right to you. As a California worker, you benefit from some of the most liberal employment laws in the nation. California is considered one of the most worker-friendly states. Many consider it the state with the most variances from federal law. Federal employment laws set the minimum requirements that employers must follow, but California gives additional rights, protections and benefits under state law. A California employer must tread carefully to ensure compliance with the complex and ever-changing employment laws in the state.  An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

The Fair Employment and Housing Commission is the primary civil rights agency in California. Among its responsibilities, FEHC is responsible for administering the California Fair Employment and Housing Act (FEHA). FEHA provisions generally apply to most employers and offer one of the most extensive lists of protected classes in the country against which an employer is prohibited from discriminating.

In California, there are many protections afforded to workers, irrespective of “at will” or contract (1099) employment.  Please note that the law now favors you being characterized as an “employee” versus 1099. The most common type of case is when a person harasses, discriminates, treats differently and/or directs negative, inappropriate, or unwanted conduct at a worker based on certain protected characteristics, such as:
  • Age
Age-based harassment occurs when a worker over the age of 40 receives less favorable treatment because of their age.
  • Race, Color, National Origin, or Ancestry
It is unlawful in California for employers to harass workers based on their race, the color of their skin, their national origin, or their ancestry.  This can include English proficiency and or having an accent.
  • Religion
It is unlawful to harass someone for their religious beliefs.
  • Physical Disabilities
Physical disabilities are the most common type of disability in the workplace. In most cases, a physical disability is any bodily condition, cosmetic disfigurement, or anatomical loss that affects one or more of the body’s major systems and limits a major life activity.
  • Association with a disabled person
Discrimination based on association with a disabled person.
  • Mental Disabilities
mental disability, for these purposes, is any mental or psychological condition that limits a major life activity.
  • Medical Condition
medical condition is defined as any genetic characteristic associated with a disease or a health impairment related to a cancer diagnosis.
  • Genetic Information
In California, employer may not collect genetic information from an employee or prospective employee to make any decisions regarding that individual’s employment.
  • Marital Status
An employer does not have the right to harass against a worker for being single, married, separated, divorced, or widowed.
  • Sex
In California, an employer may not favor, discriminate against, or harass persons based on their sex.   Sex normally refers to whether a person is biologically a male and female. But the word “sex” in this context is broader than how it is normally used. It can include discrimination based on Pregnancy, Breastfeeding or medical conditions related to pregnancy.
  • Gender, Gender Identity, or Gender Expression
Employers are prohibited from harassing employees on the basis of their gender, gender identity, or gender expression.
  • Sexual Orientation
In California, it is unlawful for an employer to harass a person for their sexual orientation.
  • Military or Veteran Status
It is illegal to harass active and veteran military service members.  California’s anti-harassment protections apply to active military service members and veterans of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard. Other common issues within employment law include:
  • Wrongful Termination (Wrongful Discharge)
  • Duty To Accommodate
  • Discrimination (generally)
  • Wage-Hour
  • Hostile Work Environment
  • Constructive Termination
  • Sexual Harassment (Quid Pro QuoSexual Harassment)
  • Retaliation
  • Whistle-blower
  • Harassment (generally)
  • Breach Of Contract
  • Association With A Disabled Person
  • Defamation In The Workplace
“At-Will” Employment Generally speaking, California employees are presumed to be employed “at-will.” This simply means that an employee does not have a contract for a set length of time and an employer has a right to terminate employment for any reason or no reason, with or without notice.  Labor Code §2922.  Although it may seem like your employer has complete freedom to fire you, this is untrue. State and Federal laws such as California’s Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964 provide protection against wrongful termination. Constructive Termination You do not necessarily need to be fired in order to pursue a claim. In certain cases, if an employer makes working conditions so terrible that an employee has no choice but to quit, there may be a case for a constructive dismissal or discharge. If you feel that any reasonable person would think of resigning under conditions that you endured, contact us to determine if you have a valid claim. The damages for wrongful termination and constructive discharge are the same under California Law. Whistleblower Protection Broadly speaking, a “whistleblower” is an employee who discloses information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses A violation of a state or federal statute;, A violation or noncompliance with a state or federal rule or regulation; or, Unsafe working conditions or work practices in the employee's employment or place of employment. California Occupational Safety and Health Act (OSHA) California operates its job safety and health programs covering the private sector under a state plan approved by the Occupational Safety and Health Administration.  Under the California Occupational Safety and Health Act, a California employer must provide and maintain a safe and healthful workplace for employees and, to that end, is required to develop and maintain a written, effective Injury and Illness Prevention Program that includes, among other things, instruction on safe workplace practices. It is important to note that if there has been an OSHA investigation (maybe a violation or notice), there is an added claim that may be filed under workers’ compensation.  This is called a serious and willful claim that may be filed under Labor Code §4553. Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply. Again, employment law is very fact intensive and every case is different and unique.  There is a limited amount of time that you have to act and you need to speak with an attorney immediately if you feel that you have been harassed, discriminated against, treated differently, or any other conduct that does not feel right to you.  There is no charge for a consultation, so it is always smart to call an attorney ASAP.  Even if you do not call us, please contact an attorney and do not let your employer and the insurance companies get away without paying you the benefits that you are entitled to!
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