Employment Law Questions and Answers

(1) What must a California employee do to file an unlawful employment practice (harassment, wrongful termination, discrimination, or retaliation) claim?

An employee in California must file a complaint with the Department of Fair Employment and Housing (“DFEH”) within one year after the alleged unlawful employment practice occurred.   DFEH then provides written authorization to the employee to file the lawsuit for violation of the Fair Employment and Housing Act (“FEHA”).  (Government Code Section 12960, 12965)

(2) What must a California employee prove to establish a harassment claim?

A California employee, or Plaintiff, must prove that (1) she was subjected to unwelcome offensive or abusive conduct; (2) the harassment was based on her religion, national origin, or ethnicity; and (3) the conduct was sufficiently severe or pervasive as to create an objectively and subjectively abusive working environment.  (CACI 2521A)

(3) What is the most critical, crucial part of an employment harassment claim?

The crux of an employment harassment claim is that the conduct is unwelcome. (Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986).   If the alleged harassment was welcomed by the recipient, the conduct did not constitute harassment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 608)

(4) Do employees have to report perceived sexual harassment by supervisors to then file a sexual harassment claim?

Yes.  Under the Fair Employment and Housing Act (“FEHA”), the doctrine of avoidable consequences is a defense that employers may use.  It permits employers to show that the company took appropriate steps to prevent and address the harassment while the Plaintiff employee unreasonably failed to take advantage of the protections.  For example, an employer’s damages would be limited for sexual harassment if the employee knew of the employer’s policies and procedures for reporting perceived sexual harassment but did not use those policies and procedures to protect herself.  (State Department of Health Services v. Superior Court of Sacramento County, 31 Cal. 4th 1026, 1044 (2004).  If employers can prove this defense, they can limit the damages that an employee may have been able to avoid by using the employer’s complaint procedures.”

(5) What does a California Plaintiff have to prove to establish discrimination or retaliation?

To establish a prima facie case of discrimination or retaliation, the Plaintiff must establish that (i) she engaged in a protected activity or belonged to a protected class; (ii) the employer subjected her to an adverse employment action; and (iii) there is a nexus or link between the protected activity or class and the adverse employment action.  (Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354-356 (2000)

(6) What is an “adverse employment action” required to establish a case of discrimination or retaliation?

An adverse employment action must be an act that has a “substantial and material adverse effect” on the terms and conditions of employment.  Adverse employment actions must affect the employee’s pay, benefits, or other key terms and conditions of her employment.  (Thomas v. Department of Corrections, 77 Cal. App. 4th 507, 510-12 (2000))  An employment action that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient to constitute an adverse employment action.  (Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002))

(7) Can employment harassment also be considered an Intentional Infliction of Emotional Distress?

An employment harassment claim must rise to the level of “extreme and outrageous” conduct to establish the claim of Intentional Infliction of Emotional Distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 618)

(8) Can a California employee bring a claim of negligent supervision?

No.  A California employee may not bring a claim of negligent supervision or employer negligence in court as that claim is exclusively within the Workers’ Compensation Act and must be brought in front of the Workers’ Compensation Appeals Board (“WCAB”).  The employee must report the injury to the employer by filing a claim, and then filing an application for adjudication of claim with the WCAB. The California Division of Workers’ Compensation (“DWC”) monitors the administration of workers’ compensation claims, and provides administrative and judicial services to assist in resolving disputes in connection with claims for workers’ compensation benefits.

(9) What does a California employee have to prove to recover punitive damages?

If a California employee wishes to recover punitive damages (in addition to compensatory damages), the employee must show that a managing agent of the employer (such as an officer or director) mistreated the employee with malice, fraud, or oppression.

(10)  What duties does a California employee (Plaintiff) in a wrongful termination action have in order to recover economic damages?

A California employee (Plaintiff) in a wrongful termination action has a duty to mitigate her damages such as finding alternative employment. (Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982)

(11) What do California Plaintiffs need to know before bringing a complaint to the Securities and Exchange Commission (“SEC”) under the Sarbanes-Oxley Act?

Sarbanes-Oxley is a whistleblower statute that protects employees who make specific complaints against publicly-traded companies (and the companies’ officers, directors, agents, employees, and contractors).  In fact, Sarbanes-Oxley was enacted right after the Enron crisis.  Sarbanes-Oxley prohibits employers from retaliating against employees.  Retaliation may come in the form of discharge, demotion, harassment, threatening, or otherwise discriminating against employees due to protected activity.   Sarbanes-Oxley has a 180-day statute of limitations which was extended by the Dodd-Frank Act.  In addition, Sarbanes-Oxley prohibits mandatory pre-dispute arbitration for whistleblower claims.

(12) Can an employee be protected if she believes fraud is about to be committed?

Yes.  California employees who believe that fraud is about to be committed are protected by the Dodd-Frank Act.  Dodd-Frank Act was enacted in response to the 2008 financial meltdown.    In addition, as part of the Dodd-Frank Act whistleblower bounty provision, an employee can collect a bounty.  A bounty is a percentage of what the SEC recovers from the fraudulent employer.  If the SEC recovers more than $1 million dollars, the SEC must give the whistleblower between 10 to 30 percent of the recovery.  The information provided to the SEC must be original information (in other words, not publicly known).  Please note, that internal complaints are not protected and that whistleblowers must submit their charges anonymously to the SEC through an attorney within 120 days of the alleged misconduct.  (Digital Realty v. Somers).   The employer does not even need to know that the employee filed the charge in order for the whistleblower, anti-retaliation protection to attach to the employee.

(13)  Does an employee’s reporting of harassment, discrimination or retaliation to the Human Resources Department constitute “protected activity”?

Yes.  An employee engaged in protected activity when he or she opposed discrimination or retaliation and reported it to the HR Department.  At that point, the employer may not retaliate against the employee.

(14) Can a California employee use his or her company’s trade secret information in the case?

Yes.  Under the Defend Trade Secrets Act, courts allow the use of trade secret information in litigation if the information is contained in a sealed filing with the court.   However, employees (Plaintiffs) may not use extreme or unlawful means to collect the trade secret or confidential company information.

(15)  What do California workers need to know before they bring a misclassification as independent contractor claim in 2018?

As of April 30, 2018, California workers are presumed to be employees instead of independent contractors.  The employer then has the burden to establish the proper classification by satisfying a three-factor test known as the ABC Test.  Misclassifying employees as independent contractors violates the IWC Wage Orders and other state Labor Codes.  Under the ABC test, a worker is deemed to be an employee.  To show that the worker is an independent contractor, the employer must prove that (i) the worker is free from the control and direction of the hiring entity in connection with the performance of the work under both the contract and in fact; (ii) the worker performs work that is outside the usual course of the hiring entity ‘s business; and (iii) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

If a court finds that the employer violated the law by misclassifying the worker as an independent contractor, the court may require the employer to pay Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, workers’ compensation insurance, and comply with all of the federal and state laws protecting employees.

Statutes of Limitation – Timing to Bring Complaints and Lawsuits

(16) How long do California employees have to file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”)?

An administrative complaint must be filed with the DFEH within one year of the alleged violation, or within 90 days after the expiration of the one year if the employee first discovered the facts underlying the violation after the one year period expired (Cal. Gov. Code 12960(d).)

(17) How long do California employees have to file an employment violation lawsuit?

California employees must file their lawsuit within one year from the date of the right-to-sue notice provided by DFEH (Cal. Gov. Code 12965(b).)  However, if the violation continues over a period of time, the limitation period only begins when the unlawful conduct ends as long as the actions are similar in kind, occur with sufficient frequency, and have not become so permanent that the employees are on notice that further efforts at informal conciliation with the employer would be meaningless.  (Richards v. CH2M Hill, Inc. 26 Cal. 4th 798 (2001).)

(18)   How long do California employees have to file a Fair Pay Act lawsuit for unequal pay?

California employees must file claims of unequal pay within two years (although willful or intentional claims must be made within three years. (Ca. Labor Code 1197.5(h).)

(19) How long do California employees have to file a lawsuit under the California Family Rights Act (“CFRA”), Pregnancy Disability Leave (“PDL”), and the New Parent Leave Act (“NPLA”)?

California employees must file the lawsuit under the CFRA, PDL and NPLA within one year from the date of a right-to-sue notice issued by DFEH.

(20) How long do California employees have to file a lawsuit for employment retaliation?

California employees must file employment retaliation lawsuits within three years of the alleged violation.  (Cal. Labor Code 98.6.).  All California employers are liable for employment retaliation.

(21) How long do California employees have to file a lawsuit for whistleblower protection?

California employees have three years to file a lawsuit for employer violations of whistleblower protections under California Labor Code 1102.5. (Cal. Labor Code 1105 and Cal. Civil Proc. 338(a).)  All California employers may be sued for whistleblower protection violations. (Cal. Labor Code 1102.5.)

(22) Who can California employees sue for harassment and violations of the Fair Employment and Housing Act (“FEHA”)?

California employees may sue any company that has one or more employees, receives the services of one or more independent contractors or acts as an agent of an employer. (Cal. Gov. Code 12940(j)(4).)

(23) Can California employees sue their co-employees for harassment under FEHA?

Yes.  Employees who unlawfully harass a co-employee are held personally liable for the harassment. (Cal. Code Regs. Tit. 2 Section 11019(b)(6).)

(24) Who can California employees sue for violation of FEHA’s anti-discrimination?

California employees may sue any California employer with at least five employees for employment discrimination under FEHA.  (Cal. Gov. Code 12900 to 12996)

(25) Who can California employees sue for violation of Pregnancy Disability Leave (“PDL”) law?

California employees may sue any California employer with at least five employees for violation of PDL (Cal. Gov. Code 12945 and 12926(d).)

(26) Who can California employees sue for violations of the California Family Rights Act of 1993 (“CFRA”)?

California employees may sue any employer with at least 50 employees for violations of CFRA.

Whistleblower Protections

(27) What anti-retaliation laws are available for California workers?

Laws prohibiting employers from retaliating against workers who oppose unlawful employer practices include Title VII of the 1964 Civil Rights Act (“Title VII”), the Americans with Disabilities Act of 1990 (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the federal and California False Claims Act (“FCA”), and Labor Code.   They prohibit retaliation by employers, employment agencies, and labor organizations against employees and other individuals that oppose an unlawful employment action, make a charge or testify, assist, or participate in an investigation, proceeding, or hearing.

(28) What protections are available to whistleblowers under the Sarbanes-Oxley Act?

California whistleblowers are protected by the Sarbanes-Oxley Act securities law if the whistleblowers reasonably believe that there was some danger or fraud to the public, corporation, or to the shareholders.  Also, merely alleging whistleblower jurisdiction under the Sarbanes-Oxley Act in and of itself confers subject matter jurisdiction (a required component of any lawsuit) under the Sarbanes-Oxley Act.

(29)  What whistleblower retaliation protections are available to California healthcare workers?

California’s Health and Safety Code Section 1278.5 (“H&S 1278.5”) is the strongest and longest protection to whistleblowers from retaliation.  Fair Employment and Housing Act (“FEHA”) also provides protection against retaliation for California health care employees.  Under H&S 1278.5 and FEHA, to prove retaliation, the plaintiff must establish that: (1) He or she engaged in a protected activity; (2) He or she was thereafter subjected to an adverse employment action by the employer; and (3) There was a connection between the protected activity and adverse employment action.

(30) Who are protected under California’s Health and Safety Code Section 1278.5 Whistleblower Protection?

California employees, members of the medical staff, rank and file workers, and even patients are protected by California’s Health and Safety Code Section 1278.5.  Health and Safety Code Section 1278.5 is the most common workplace anti-retaliation law and prohibits retaliation against employees who blow the whistle by notifying a federal or state agency on, or refuse to participate in, activity that may violate any laws in the workplace.

(31) What protections does California’s Health and Safety Code Section 1278.5 offer for California’s health care workers?

Under Health and Safety Code 1278.5, California employers are prohibited from discrimination or retaliation against a patient, employee, medical staff member or worker of the healthcare facility based on his or her (i) complaint or report to an agency responsible for evaluating that facility or (ii) initiation, participation or cooperation in an investigation or proceeding related to the quality of care, services, or conditions at the facility to an agency responsible for evaluating that facility.

(32) What are examples of employer retaliation against whistleblowers in violation of Health and Safety Code Section 1278.5?

If the employer subjects the whistleblower to adverse working conditions such as being assigned to a room by herself for days, being shunned and treated negatively, receiving worse work tasks or schedules, or being left off of new projects, that can be viewed as unlawful retaliation.

(33) What are the penalties for a violation of California’s Health and Safety Code Section 1278.5 whistleblower protection?

As of January 1, 2018, the penalty for employers that violate Health and Safety Code 1278.5 is $75,000 in civil penalties for a willful, intentional violation.  Employers may also be guilty of a misdemeanor.