The subject of “employee rights” in California is a vast one that many full length books have been written about, and still those books cannot keep abreast of new developments. This article does not pretend to be anything more than an overview of some of the most important aspects of employee rights in California.

There are five general aspects of employee rights in California: laws governing wage and hours, contract principles, anti-discrimination, family leave entitlement, and public policy.

There are, of course, numerous wage and hours laws, including but not limited to those governing overtime, and meals and breaks. Most of these are found in the California Labor Code. They can be enforced both by the Labor Commissioner of the State of California, as well as individual employees. There recently has been a considerable amount of litigation and dispute in these areas, particularly where employers have creatively attempted to categorize employees as salaried management personnel, and so “exempt” them from the overtime law. Some employers have been successful here, others have not. The latter have faced massive class action lawsuits that have challenged and beaten back the improper categorization of employees as salaried management to which no overtime wage was owed.

At its core, the employment relationship in California is a contractual one, based on contract principles, which is the second aspect of employee rights in California. In other words, the employment relationship is based on an agreement between the employer and employee that the employee will work for the employer for a given rate of pay and on certain other terms. This agreement can either be written, or oral. Unless otherwise provided for by agreement (and sometimes the practice or custom of the employer), employees in California are “at will” employees, meaning they can be terminated at any time for any or no reason. There are exceptions to this general rule of “at will” employment however, and they can either be contract exceptions, or laws governing anti-discrimination, family leave entitlement, and public policy.

Concerning contract exceptions to “at will” employment, some employment agreements require “cause” and a certain process before an employer can be terminated. When an employee is terminated without cause or adequate process in such circumstances, he or she may make a claim for breach of contract and claim his or her wage loss and/or reinstatement rights. Such arrangements occur with regularity where there is a union which has negotiated a “collective bargaining agreement,” specifying the legitimate reasons or “cause” for terminating an employee. These agreement typically also set forth procedures that must be followed before an employee can be terminated. Occasionally, other employment agreements or practices require certain reasons or cause for termination, or a process that must be followed before an employer can be terminated.

Similarly, there are laws that prohibit termination or other adverse employment action, such as demotion. Irrespective of contractual terms that otherwise might allow an employer to terminate an employee, an employer cannot terminate an employee (or take adverse action against), an employee because of his race, ethnicity, religion, sex, sexual orientation, or disability. Because it is often difficult to demonstrate what an employer or supervisor’s actual intent was in terminating or taking adverse employment action against an employee, there are presumptions that have been applied to allow employee to make a “prima facie” or initial showing of discrimination. Thus the employee must show that a) he or she is a member of a protected class (race, sex, etc.), b) that adverse employment action has been taken against him or her, and c) that such adverse action has not been taken against members of non-protected classes under similar circumstances.

The burden then shifts to the employer to show that there was a legitimate, non-discriminatory reason for the termination or adverse employment reaction. If the employer can make this showing, then the burden shifts back to the employee to demonstrate by a preponderance of evidence that the adverse employment action was taken in substantial part for improper, discriminatory reasons. If the employee prevails at trial in such a showing, he or she may be entitled to reinstatement and/or substantial damages, including wage and benefit loss, pain and suffering damages, punitive damages, and attorney’s fees.

In addition to termination or adverse employment actions, anti-discrimination laws in California (both of federal and state origin), prohibit harassment or a hostile environment on the basis of any of the suspect categories: race, ethnicity, sex, etc. This not infrequently can involve sexual harassment, most often by one sex against another, but sometime by the same sex. Typically this is “hostile environment” harassment, involving unwanted sexual advances, and/or quid pro quo situation where a supervisor demands or receives sexual favors in exchange for job retention or advancement. Again, a showing of such harassment or hostile environment can give rise to the same type of remedies and damages that traditional discrimination may trigger
Anti-discrimination laws also protect against discrimination on the basis of disability. In general, employers must make reasonable accommodation to employees for qualified permanent or semi-permanent disabilities that do not prevent the employee from performing the core tasks of his or her jobs. An employer may not terminate, take adverse action against, or fail to accommodate such a disabled employee. Remedies here include accommodation, reinstatement, back and forward pay, pain and suffering damages, and emotional distress.

Laws in California also protect the family leave entitlement of qualified employees of qualified employers. Employers of 50 or more employees allow employees to take up to 12 weeks of unpaid time off for personal illness, to attend to the illness of family member, or birth or adoption of a child. On his or her return, the employee must be reinstated to the same or comparable position held at the time of initially taking leave. Medical certification of the need for leave may be required of the employee. Employers may be liable to employee for all damages proximately caused by an employer’s failure to provide family leave, or retaliation against an employer for exercising leave rights, including reinstatement, wage loss, pain and suffering, punitive damages, and attorney’s fees.

Finally, notwithstanding the general “at will” nature of most employment in California, an employer cannot terminate an employee “in violation of public policy.” The public policy in question most normally be found in a particular law, statute, or regulation. Some examples including terminating a person for “whistleblowing” (i.e., reporting the employer to government authorities for a violation of the law), for refusing to participate in illegal activities, for reporting an unsafe work practice, for engaging in political activities outside the work place, or for voting. If an employee can demonstrate that an employer terminated him or her for one of these reason, he or she may be entitled to recover lost wage, pain and suffering, and emotional distress.

It is essential that an employee who thinks his or her rights have been violated discuss the matter with competent, experienced counsel to determine what might be done. The Law Offices of Matthew J. Witteman stand ready to provide such consultation.

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