Illegal firings happens when an employment relationship is ended by an employer in violation of the employee’s legal rights.1 In California, these situations are often referred to as wrongful terminations. They can arise when an employer violates a state or federal statute,2 general principles of public policy,3 the worker’s employment contract,4 or some other aspect of the law.5
California law provides comprehensive workplace protections for employees, some of which govern how, when, and under what circumstances an employee may legally be firing, laid off, or otherwise let go. This article will take a closer look at the five most common situations where employers commit an illegal firing under California state law.
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- 1 Employers May Not Breach an Employment Contract
- 2 Employers May Not Engage in Unlawful Discrimination
- 3 Employers May Not Engage in Unlawful Retaliation
- 4 Employers May Not Fire Workers for Taking Protected Time Off
- 5 Employers May Not Fire Workers in Violation of Public Policy
Employers May Not Breach an Employment Contract
Most employees in California are considered to be “at-will” employees. At-will employment means that the employee is free to leave their jobs at any time and employers are likewise free to fire the employee at any time for any lawful reason—or even no reason at all.6
Employment in California is presumed to be at-will, unless there is a specific contractual relationship between the employer and employee that limits the employer’s ability to fire the employee.7 Under normal circumstances, both the employee and the employer have a right to end the employment relationship, unless doing so would be unlawful.8
At-will employees can leave employment at any time. Likewise, employers can fire at-will employee for seemingly arbitrary reasons, so long as those reasons are not unlawful.9 This can lead to some confusing results.
Many employees believe that their job is protected unless they break the rules, do a bad job, or commit some other type of wrongdoing. But that usually isn’t the case.
At-will employment means that an employer can simply decide to fire the employee on a whim, without any good reason, even when the employee is doing a good job.10
For example, an employer might be in a bad mood one day, and decide to fire a random at-will employee. There is nothing inherently unlawful about doing that (even if it was an unwise business decision). As such, the fired employee probably cannot claim that they were illegally fired.
Employment Contracts Can Limit an Employer’s Ability to Fire Workers
Of course, not all employees are considered “at-will.” Some employees have contracts that limit their employer’s ability to fire them.11 In these situations, employees might be able to claim that they were illegally fired merely because their employer lacked a good reason to fire them.
For example, when an employer agrees to hire an employee for a specific period of time, but doesn’t specify the circumstances under which the employment can be fired, laid off, or let go, the employee can only be terminated under three circumstances:
- The employee willfully breaches one of his or her employment duties,
- The employee is habitually neglectful of his or her employment duties, or
- The employee is unable to perform his or her employment duties for some reason.12
These kinds of employment contracts can be entered into verbally or in writing. But the agreement must unambiguously specify that it is for a set period of time.13
A contract can also limit the employer’s ability to fire the employee if it requires the employer to have a good reason for the termination. For example, the employment contracts of company executives commonly have provisions that limit the circumstances under which they can be fired.
Likewise, employees who are part of a union are usually not “at-will” employees. Unions normally negotiate an employment contract that permits only “for cause” firings.14 This means that employees may only be let go if the employer has a good reason.
For these reasons, it is important for employees to examine their employment contract (if they have one) when they are fired.
Even At-Will Employees Can’t Be Fired for Unlawful Reasons
Even though employers don’t need a good reason to fire an at-will employee, they are prohibited from firing employees for unlawful reasons. Examples of unlawful reasons include:
- Firing an employee because of their race, gender, disability, sexual orientation, religion, or other protected characteristic;15
- Firing an employee for their political beliefs or affiliations;16
- Firing an employee because the employee requested time off that they are legally-entitled to take;
- Firing an employee because the employee reported a violation of the law;17 or
- Firing an employee for reasons that violated public policy.18
Put simply: Employers can fire at-will employees for any lawful reason (or no reason at all), but they can’t fire employees if they are motivated by unlawful reasons.
Employers May Not Engage in Unlawful Discrimination
One of the most common grounds for an illegally firing claim arises when the employer has a discriminatory intent in firing the employee. In California, there are a variety of laws that prohibit discrimination in the workplace.
The most important anti-discrimination law for California employees is the Fair Employment and Housing Act (known as “FEHA”).21 It prohibits employers that have five or more employees22 from discriminating against employees on the basis of their:
- Age, if the employee is over the age of 40;
- Race, color, national origin, or ancestry;
- Physical or mental disability;
- Medical condition;
- Genetic information;
- Marital status;
- Sex, gender, gender identity, or gender expression;
- Sexual orientation; or
- Military or veteran status.23
An employer cannot target an employee for termination for any of these characteristics.24 And an employer may not create a work environment in which being a member of a protected class automatically puts a worker at a disadvantage or excludes them from something.25
Likewise, an employer may not harass a member of a protected class for being part of that class.26 And the employer may not create or maintain a hostile work environment that leaves the class member with no option than to quit the job.27
Of course, there are many caveats to these rules. To learn more about California’s anti-discrimination laws, please review our article: Discrimination Laws in the California Workplace, Explained.
Although FEHA is California’s broadest anti-discrimination law, various other laws in California also prohibit discrimination. A few of those are explored below.
All persons, regardless of their immigration status, are protected by California’s employment laws.28 That does not mean, however, that immigration-based discrimination is unlawful. It merely means that non-citizens are protected against discrimination to the same extent as United States citizens.29
In fact, employers are prohibited by law from hiring or continuing to employ undocumented immigrants.30 So, to some extent, employers are required to consider an employee’s immigration status.
The employer’s ability to investigate their employees’ legal status is limited, however. They may not request more or different documents than are required by the federal government.31 Nor may they refuse to honor immigration-related documents that reasonably appear to be genuine.32
And, if the employee is present in the United States legally, and the employer nevertheless discriminates against them on the basis of their status as an immigrant, the employer may have engaged in national origin discrimination.
It is unlawful for employers to discriminate against an employee based on their national origin.33 National origin discrimination can include discrimination against those holding the type of driver’s license that California gives to non-citizens.34
Additionally, employers are prohibited from reporting or threatening to report their employees’ citizenship or immigration status in retaliation for the employee’s exercise of an employment-related right.35
In some cases, an employer commits an illegal firing if they terminate their employee for speaking a different language in the workplace.
In general, it is unlawful for employers to limit or prohibit the use of any language in any workplace.36 These issues commonly arise when an employer adopts an English-only requirement in their workplace.
The purpose of rule prohibiting language discrimination is to prevent employers from adopting policies that effectively discriminate against employees based on national origin.37
As with many laws, there is an important exception to the rule prohibiting language discrimination. An employer may limit or prohibit the use of a language in the workplace if:
- The language restriction is justified by a business necessity,
- The employer has notified its employees of when the language restriction is required to be observed,
- The employer has notified its employees of the consequences of violating the language restriction, and
- There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.38
A language restriction is considered a business necessity when it is needed to ensure the safe and efficient operation of the business. The language restriction must also effectively fulfills the business purpose it is supposed to serve.39
An employer can commit an illegal firing if they terminate an employee for their political views or activities. California law prohibits employers from controlling their employees’ political activities.40 This means that an employer may not punish an employee for being a member of a specific political party. Nor may employers forbid employees from going to political rallies or becoming candidates for public office.
Employers are also prohibited from trying to coerce or influence their employees to take any sort of political action.41 And employers are prohibited from retaliating against employees who oppose such practices.42
Political discrimination can be serious. In some cases, it is criminally punishable as a misdemeanor.43 There are also fines, fees, and civil damages that can be imposed against the employer (and sometimes recovered by the employee).44
Discrimination Against Victims of Crimes
Victims of crimes often have a right to be free from discrimination from their employer. Specifically, employers may not discriminate against employees who need to appear in court as a witness in a crime that they were the victim of.45
Nor may employers discriminate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking.46
The victims of domestic violence, sexual assault, or stalking also have a right to take time off work to obtain a restraining order against the perpetrator of the crime.47 Employers may not terminate employees for doing so.
In general, employees who have been the victims of crimes must give their employer reasonable advance notice of their intention to take time off work to obtain a restraining order or to be a witness in a court proceeding.48
Sometimes providing an advance notice of an absence to the employer isn’t feasible, like when an emergency restraining order is required. In those cases, the employee may need to provide documentation to their employer if they want to be protected from discrimination for taking the time off work.49
Depending on other factors, like the nature of the crime or the size of the employer, the victims of crimes may have several other rights. Examples include:
- The right to attend judicial proceedings related to that crime;50
- The right to seek medical attention for injuries;51
- The right to obtain psychological counseling related to the crime;52 and
- The right to obtain services from a shelter, program, or crisis center.53
In many cases, employers must permit employees to take time off to do these things.
Criminal Conviction Discrimination
Beginning on January 1, 2018, most employers in California will be prohibited from asking job applicants about their conviction history before making a conditional offer.54 After a conditional offer is made, the employer may conduct a background check.55 But even then, employers will be prohibited from considering any of the following:
- An arrest not followed by conviction, except under limited circumstances (like when the employee or applicant is currently out on bail);
- Referral to or participation in a pretrial or posttrial diversion program; or
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.56
If, after a conditional offer is made, the employer conducts a background check and discovers a prior conviction, they must conduct an individualized assessment of the applicant’s conviction history. The goal of this individualized assessment is to determine whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.57
Employers May Not Engage in Unlawful Retaliation
All California employers have legal obligations they must follow. When they violate the law in some way, employees may wish to complain about or report the employer’s wrongdoing. In many cases employees are protected from being punished or fired if they do so.
This section explores the different kinds of retaliation that may result in a valid claim of illegal firing.
Reporting Unlawful Activities
In California, if an employee reasonably believes that the employer has violated a law or regulation, the employee has a right to report that violation to the government. The employee also has a right to report that violation to an employee that supervises them.58
Employers are prohibited from punishing or firing employees for disclosing information about a legal violation to the government, a law enforcement agency, or their supervisor.59
Along these same lines, an employer cannot prohibit employees from working with or testifying before any government agency that may be investigating or prosecuting the employer for legal violations.60
Finally, employers cannot fire or punish employees for refusing to participate in unlawful activities.61
An employer who discharges an employee for reporting unlawful activities commits an illegal firing.
Discrimination and Harassment Complaints
Employers are prohibited from firing or punishing employees who complain about, report, or otherwise oppose unlawful discrimination or harassment.62
An employer who fires an employee for opposing unlawful discrimination or harassment has committed an illegal firing.
Complaining About Unpaid Wages
Employees have a right to file a complaint with California’s Labor Commissioner when they believe they have been underpaid.63 This right would be meaningless if employers were allowed to fire employees who file such complaints.
California law prohibits employers from terminating, discharging, or in any manner retaliating against employees who file a wage and hour complaint with the Labor Commissioner.64
Additionally, employees have a right to complain to their employer that they are owed unpaid wages. Even if no claim is filed with the Labor Commissioner, employers are prohibited from terminating, discharging, or in any manner retaliating against employees for complaining about unpaid wages.65
To learn more about wage claims with the Labor Commission, please review our article: How to File a Wage & Hour Claim in California.
Employees have a right to discuss the amount of their wages with other employees. Employers are prohibited from firing their employees for disclosing the amount of their wages to anyone.66
Complaining About Unlawful Work Conditions
Employers are prohibited from firing or punishing employees who complain about workplace safety issues.67 Employers are also prohibited from firing or punishing employees who reporting an issue of employee safety or health to a government agency.68 This means that employees cannot be fired for filing an OSHA complaint.
Additionally, employers usually cannot fire or punish an employee who refuses to perform work that would violate any occupational safety or health standard.69 And employees are protected if they have to testify in a court proceeding about dangerous work conditions.70
Discussing Work Conditions
Employees have a right to discuss their work conditions—as long as those discussions don’t involve matters that may be trade secrets or legally-protected.71
In keeping with this right, employers are prohibited from terminating employees for disclosing information about their working conditions to other people.72 Again, this rule is limited to information that is not proprietary, secret, or otherwise legally-protected.
This rule is mainly intended to protect employees who complain or discuss potentially unsafe or unlawful working conditions.
Requesting a Reasonable Accommodation
Several types of employees have a right to receive a reasonable accommodation from their employer. A reasonable accommodation is an adjustment to the employee’s work environment or job duties that can enable the employee to perform the essential functions of a job in suitable conditions.
Common examples of situations in which a reasonable accommodation may be required include the following:
- Employees with disabilities often have a right to work under different conditions than other employees.73
- They may also have a right to time off of work, as an accommodation for their disability.74
- Religious employees may have a right to an accommodation of their religious practices and observances.75
- Employees who have difficulty reading may have a right to a reasonable accommodation.76
- Employees with substance abuse problems may have a right to a reasonable accommodation for them to participate in an alcohol or drug rehabilitation program.77
Employers generally cannot retaliate against employees in these situations for requesting an accommodation. This means that an employer will usually commit an illegal firing if they discharge an employee for requesting or requiring a reasonable accommodation.
Filing a Workers’ Compensation Claim
Under California law, it is the state’s policy “that there should not be discrimination against workers who are injured in the course and scope of their employment.”78 California courts have interpreted this policy to protect employees from retaliation for filing a workers’ compensation claim.79
The broad nature of that policy favors employees who are fired or treated unfairly as the result of a job-related injury.80 In general, an employer commits an illegal firing if they fire an employee in retaliation for filing a workers’ compensation claim.
Employers May Not Fire Workers for Taking Protected Time Off
There are many situations in which employees have a legal right to take time off from work. When an employer fires an employee for taking that time off, they usually will commit an illegal firing. This chapter explores the most common types of leave that employees have a right to take.
Family and Medical Leave
Many employees in California have a right to take up to 12 workweeks of unpaid family or medical leave per year.81 When an employee has a right to take family or medical leave, the employer is prohibited from firing them for exercising it.82
Family or medical leave can be taken for any of the following reasons:
- To bond with a child who was born to, adopted by, or placed for foster care with, the employee;
- To care for the employee’s parent, spouse, or child who has a serious health condition; or
- Because the employee is suffering from a serious health condition rendering them unable to perform the functions of their job.83
Beginning on January 1, 2018,84 the eligibility requirements for family or medical leave depend on the reason why the leave is being taken.
Leave for Serious Health Conditions
If the employee is taking medical leave to care for their own serious health condition or the serious health condition of a parent, their spouse, or their child, the following requirements must be met:
- The employer must have at least 50 employees within 75 miles of the employee’s worksite;85
- The employee worked more than 12 months for the employer prior to the date that the period of leave is taken;86 and
- In the past 12-month period, the employee worked at least 1,250 hours for the employer.87
A serious health condition, for these purposes, is a physical or mental condition that involves either of the following:
- Inpatient care in a hospital, hospice, or residential health care facility; or
- Continuing treatment or continuing supervision by a healthcare provider.88
Inpatient care means a stay in a hospital, hospice, or residential health care facility, as well as any subsequent treatment in connection with that inpatient care.89
Child Bonding Leave
If the employee is taking family leave to bond with a new child after the child’s birth, adoption, or foster care placement with the employee, the following requirements must be met:
- The employer must have at least 20 employees within 75 miles of the employee’s worksite;90
- The employee worked more than 12 months for the employer prior to the date that the period of leave is taken;91 and
- In the past 12-month period, the employee worked at least 1,250 hours for the employer.92
If all three requirements are met, employers will usually be required to provide up to 12 weeks of family leave to eligible employees.93
New mothers and fathers have a right to take the family and medical leave discussed above. That leave is usually taken to bond with the new child. But pregnant mothers also have a right to take a different kind of leave: pregnancy disability leave.94
Employees that are disabled by their pregnancy, by childbirth, or a related medical condition have a right to take up to four months of leave from work.95 This leave can be take in addition to the 12-weeks of bonding time described above,96 but it only continues for as long as the employee is disabled.97
To be eligible for pregnancy disability leave, the employee must work for an employer that regularly employs five or more employees.98
A woman is disabled by her pregnancy if, in the opinion of her doctor, she is unable to perform any one or more of the essential functions of her job because of her pregnancy.99 A woman might also be disabled by her pregnancy if she suffers from one or more of the following conditions:
- Severe morning sickness,
- Prenatal or postnatal care,
- The need for bed rest,
- Gestational diabetes,
- Pregnancy-induced hypertension,
- Post-partum depression,
- Loss or end of pregnancy, and
- Recovery from loss or end of pregnancy.100
The common factor with each of these examples is that the pregnancy-related disability has limited a major life activity.101
If an employee has a legal right to take pregnancy disability leave and they are fired for taking it, the employee probably has a claim for illegal firing.102
Some employers provide sick leave even when they aren’t required by law to do so. California law prohibits employers from firing employees for using sick leave they have accrued.103
More accurately, if an employer provides sick leave and the employee has accrued a sick leave entitlement, the employer is required to permit their employee to take that sick leave to diagnose, care, or treat an existing health condition of the employee or their family member.104
Employers can, however, limit the amount of sick leave taken at any given time to that which would be accrued by the employee during a six-month period.105
Employers can commit an illegal firing by terminating an employee who has requested or expressed a desire to take a lactation break.
A lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump). Both state and federal laws require California employers to provide lactation breaks.106
The right to a lactation break does not apply if it would seriously disrupt the operations of the employer.107 This exception is hard to meet, however, and employers should be cautious before invoking it.
Time Off to Vote
All employers in California are required to permit their employees time off to vote in any statewide election.108 This rule applies if the employee will not have sufficient time outside of working hours to vote.109
Employers can require that the employee take the time off to vote either at the beginning or end of the regular working shift.110 And the employee can be required to give at least two working days of notice for the necessary time off.111
Time Off for Military Leave
An employer may not punish or fire an employee for joining the military or requiring less than five years of time off to serve.114 Additionally, when the employee returns from leave, the employer may not fire the employee without cause for one year (if the employee’s period of service was more than 180 days).115
Time Off for Jury Duty
California employees are sometimes required to participate in jury duty. In addition to being a civic duty, jurors are often required by law to attend court proceedings. As such, employers are prohibited from firing or in any manner discriminating against employees who need time off to serve on a jury.116
Importantly, however, the employer can require the employee to give reasonable notice that they will be required to serve.117
Parents and School-Related Activities
Parents who are employees of large employers have a right to take up to 40 hours each year off for the purpose of certain child-related activities.118 A “large employer” for these purposes is an employer that employs 25 or more people.
Protected child-related activities include:
- Finding a school in which to enroll the child,
- Participating in activities of the school, and
- Handling school emergencies.119
Employees must usually give a reasonable notice to their employer if they wish to take this time off. And sometimes the employer can limit the amount of time that the employee takes off to eight hours in a calendar month.120
Additionally, under certain circumstances, employers of all sizes are prohibited from firing parents for taking time off to appear at the school of their child if the child has been suspended and the teacher requests a meeting.121 The parent must give reasonable notice to the employer that he or she is requested to appear in the school.122
Employers May Not Fire Workers in Violation of Public Policy
Sometimes an employer will fire someone for reasons that don’t technically violate the law, but the employer has nevertheless violated a fundamental public policy. In those cases, the employee might still have a claim for illegal firing.123
The idea behind these kinds of claims is that employers are required, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes.124
There are a variety of actions that can constitute a violation of public policy in California. The courts have laid out four basic requirements:
- The policy must be supported by either constitutional or statutory provisions;
- The policy must benefit society at large, rather than serving merely the interests of the individual employee;
- The policy must have been well-established at the time the employee was fired; and
- The policy must be fundamental and substantial.125
The most obvious example of a termination that violates public policy would be when an employer fires an employee for refraining to do something harmful or illegal.126 Likewise, an employer might violate public policy if they fire an employee for refusing to sign an illegal or unenforceable contract.127
There are, of course, many types of terminations that might violate public policy in the State of California. If you are unsure whether you have been terminated in violation of public policy, discuss your case with a qualified employment lawyer.
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Weinbaum v. Goldfarb (1996) 46 Cal.App.4th 1310, 1315 [an illegal firing claim arises out of “the employer’s improper discharge of an employee” in an “employer-employee relationship”].Footnote 1
E.g., Gov. Code, § 12940 [California’s Fair Employment and Housing Act, which prohibits certain types of discriminatory firing]; 42 U.S.C. § 2000e–2000e-17 [The Civil Rights Act of 1964, a federal law that prohibits certain types of discriminatory firing].Footnote 2
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [“[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.”].Footnote 3
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 336 [the parties in an employment relationship “are free to define their relationship, including the terms on which it can be ended, as they wish”].Footnote 4
E.g., Jersey v. John Muir Medical Ctr. (2002) 97 Cal.App.4th 814, 821 [“A discharge for the exercise of a constitutionally conferred right, no less than the exercise of a statutory right, may support a wrongful termination action in violation of public policy.”].Footnote 5
Labor Code, § 2922 [“An employment, having no specified term, may be terminated at the will of either party on notice to the other.”]; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 678 [“[A] contract for permanent employment, for life employment, for so long as the employee chooses, or for other terms indicating permanent employment, is interpreted as a contract for an indefinite period terminable at the will of either party . . . .”].Footnote 6
Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386 [“This presumption of at-will employment may be rebutted only by evidence of an express or implied agreement between the parties that the employment would be terminated only for cause.”].Footnote 7
Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 396 [“An at-will employment may be ended by either party ‘at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.”].Footnote 8
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 857–858 [overruling a summary judgment motion by the defendant employer in a case where there were issues of fact as to whether the employer used an arbitrary reason to fire the plaintiff capriciously when the true motive to fire the plaintiff was his age].Footnote 9
Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 396.Footnote 10
See, e.g., Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 96, fn. 1 [“Wrongful termination claims founded on an explicit promise that termination will not occur except for just or good cause may call for a different standard, depending on the precise terms of the contract provision.”].Footnote 11
Labor Code, § 2924 [“An employment for a specified term may be terminated at any time by the employer in case of any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it.”].Footnote 12
Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 969–970.Footnote 13
Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 320 [“Under most union contracts, employees can only be dismissed for ‘just cause,’ and disputes over what constitutes cause for dismissal are typically decided by arbitrators chosen by the parties.”].Footnote 14
Gov. Code, § 12940, subd. (a).Footnote 15
Labor Code, § 1101.Footnote 16
Labor Code, § 1102.5.Footnote 17
Labor Code, §§ 96, subd. (k), 98.6, 6310.Footnote 18
Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 396.Footnote 19
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 857–858.Footnote 20
Gov. Code, § 12940, subd. (a); Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 638 [“The broad purpose of the FEHA is to safeguard an employee’s right to seek, obtain, and hold employment without experiencing discrimination on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.”].Footnote 21
Gov. Code, §§ 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d).Footnote 22
Gov. Code, § 12940.Footnote 23
Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195 [“In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.”].Footnote 24
Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129 [“To prevail on a theory of disparate impact, the employee must show that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on certain employees because of their membership in a protected group.”].Footnote 25
Gov. Code, § 12940, subd. (j).Footnote 26
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.Footnote 27
Labor Code, § 1171.5, subd. (a).Footnote 28
Labor Code, § 1171.5, subd. (a).Footnote 29
8 U.S.C. § 1324a(a).Footnote 30
Lab. Code, § 1019.1, subd. (a)(1).Footnote 31
Lab. Code, § 1019.1, subd. (a)(2).Footnote 32
Gov. Code, § 12940, subd. (a).Footnote 33
Gov. Code, § 12926, subd. (v); Veh. Code, § 12801.9.Footnote 34
Labor Code, § 244.Footnote 35
Gov. Code, § 12951, subd. (a).Footnote 36
Turner, Public Entities, Officers, and Employees: Chapter 295: Codification of California’s Fair Employment and Housing Commission Regulations Governing Workplace Language Policies (2002) 33 McGeorge L.Rev. 433, 439.Footnote 37
Gov. Code, § 12951.Footnote 38
Gov. Code, § 12951, subd. (b).Footnote 39
Labor Code, §§ 1101, 1102; see also Labor Code, § 96, subd. (k).Footnote 40
Labor Code, § 1102.Footnote 41
Labor Code, § 1102.5.Footnote 42
Labor Code, § 1103 [“An employer or any other person or entity that violates this chapter is guilty of a misdemeanor punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine not to exceed one thousand dollars ($1,000) or both that fine and imprisonment, or, in the case of a corporation, by a fine not to exceed five thousand dollars ($5,000).”].Footnote 43
Labor Code, §§ 1102.5–1105.Footnote 44
Labor Code, § 230, subd. (b) [” An employer shall not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.”].Footnote 45
Labor Code, § 230, subd. (e) [“An employer shall not discharge or in any manner discriminate or retaliate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if the victim provides notice to the employer of the status or the employer has actual knowledge of the status.”].Footnote 46
Labor Code, § 230, subd. (c) [“An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.”].Footnote 47
Labor Code, § 230, subd. (d).Footnote 48
Labor Code, § 230, subd. (d).Footnote 49
Labor Code, §§ 230.2, subd. (b), 230.5.Footnote 50
Labor Code, § 230.1, subd. (a)(1).Footnote 51
Labor Code, § 230.1, subd. (a)(3).Footnote 52
Labor Code, § 230.1, subd. (a)(2).Footnote 53
Gov. Code, § 12952, subd. (a).Footnote 54
Gov. Code, § 12952, subd. (a).Footnote 55
Gov. Code, § 12952, subd. (a); Labor Code, § 432.7, subds. (a)(1), (f).Footnote 56
Gov. Code, § 12952, subd. (c).Footnote 57
Labor Code, § 1102.5, subd. (a); Health & Saf. Code, §§ 1596.881, 1596.882.Footnote 58
Labor Code, § 1102.5, subd. (a).Footnote 59
Labor Code, § 1102.5, subd. (b).Footnote 60
Labor Code, § 1102.5, subd. (c) [“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”].Footnote 61
Gov. Code, § 12940, subd. (m) [“For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”]; Labor Code, § 1197.5.Footnote 62
Labor Code, § 98, subd. (a); Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 946 [“[I]f an employer fails to pay wages in the amount, time, or manner required by contract or statute, the employee may seek administrative relief by filing a wage claim with the commissioner or, in the alternative, may seek judicial relief by filing an ordinary civil action for breach of contract and/or for the wages prescribed by statute.”].Footnote 63
Labor Code, § 98.6, subd. (a).Footnote 64
Labor Code, § 98.6, subd. (a).Footnote 65
Labor Code, § 232, subd. (c) [“No employer may do any of the following: . . . (c) .Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.”].Footnote 66
Labor Code, § 6310, subd. (a).Footnote 67
Labor Code, § 6310, subd. (a).Footnote 68
Labor Code, § 6311.Footnote 69
Labor Code, §§ 1102.5, 6399.7.Footnote 70
Labor Code, § 232.5.Footnote 71
Labor Code, § 232.5, subd. (c).Footnote 72
Gov. Code, § 12940, subd. (a), (m); Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [“In addition to a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an applicant’s or employee’s known disability.”].Footnote 73
Cal. Code Regs., tit. 2, §§ 11065, subd. (p)(2)(M), 11068, subd. (c).Footnote 74
Gov. Code, § 12940, subd. (l).Footnote 75
Labor Code, §§ 1041–1044.Footnote 76
Labor Code, § 1025–1028.Footnote 77
Labor Code, § 132a.Footnote 78
Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal.App.3d 1347, 1364.Footnote 79
Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 666–667.Footnote 80
Gov. Code, § 12945.2.Footnote 81
Gov. Code, § 12945.2, subd. (l).Footnote 82
Gov. Code, § 12945.2, subd. (c)(3).Footnote 83
On October 12, 2017, Governor Jerry Brown signed Senate Bill No. 63, which significantly expanded family and medical leave rights for California employees. This section reflects those changes, which begin taking effect on January 1, 2018.Footnote 84
Gov. Code, § 12945.2, subd. (c)(2); Cal. Code Regs., tit. 2, § 11087, subd. (d) [“‘Covered employer’ means any person or individual, including successors in interest of a covered employer, engaged in any business or enterprise in California who directly employs 50 or more persons . . . .”].Footnote 85
Gov. Code, § 12945.2, subd. (a).Footnote 86
Gov. Code, § 12945.2, subd. (a).Footnote 87
Gov. Code, § 12945.2, subd. (c)(8).Footnote 88
Cal. Code Regs., tit. 2, § 11087, subd. (q)(1) [“‘Inpatient care’ means a stay in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with such inpatient care, or any period of incapacity. A person is considered an “inpatient” when a heath care facility formally admits him or her to the facility with the expectation that he or she will remain at least overnight and occupy a bed, even if it later develops that such person can be discharged or transferred to another facility and does not actually remain overnight.”].Footnote 89
Gov. Code, § 12945.6, subd. (a).Footnote 90
Gov. Code, § 12945.2, subd. (a).Footnote 91
Gov. Code, § 12945.2, subd. (a).Footnote 92
Cal. Code Regs., tit. 2, § 11088, subd. (a) [“It is an unlawful employment practice for a covered employer to refuse to grant, upon reasonable request, a CFRA leave to an eligible employee, unless such refusal is justified by the permissible limitation specified below in subdivision (c).”].Footnote 93
Gov. Code, § 12945.Footnote 94
Gov. Code, § 12945, subd. (a).Footnote 95
Gov. Code, § 12945.2, subd. (c)(3); Cal. Code Regs., tit. 2, § 11046, subd. (a) [“The right to take a pregnancy disability leave under Government Code section 12945 and these regulations is separate and distinct from the right to take leave under the California Family Rights Act (CFRA), Government Code sections 12945.1 and 12945.2.”].Footnote 96
Gov. Code, § 12945, subd. (a).Footnote 97
Gov. Code, § 12926, subd. (d).Footnote 98
Cal. Code of Regs., tit. 2, § 11035, subd. (f) [“A woman is ‘disabled by pregnancy’ if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons.”].Footnote 99
Cal. Code of Regs., tit. 2, § 11035, subd. (f).Footnote 100
Gov. Code, § 12926, subd. (m)(1).Footnote 101
Gov. Code, § 12945, subd. (a).Footnote 102
Labor Code, § 233; see also Labor Code, § 1512 [relating to bone marrow donations].Footnote 103
Labor Code, §§ 233, subd. (a), 246.5, subd. (a)(1).Footnote 104
Labor Code, § 233, subd.Footnote 105
Labor Code, §§ 1030–1033; 29 U.S.C. § 207(r) [applying only to employers with 50 or more employees if such requirements would impose an undue hardship].Footnote 106
Labor Code, § 1032 [“An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.”]; see also 29 U.S.C. 207(r)(3) [“An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”].Footnote 107
Elec. Code, §§ 14000–14002.Footnote 108
Elec. Code, § 14000, subd. (a).Footnote 109
Elec. Code, § 14000, subd. (b).Footnote 110
Elec. Code, § 14000, subd. (c).Footnote 111
38 U.S.C. § 4312.Footnote 112
38 U.S.C. § 4313.Footnote 113
38 U.S.C. §§ 4311–4313.Footnote 114
38 U.S.C. § 4316(c).Footnote 115
Labor Code, § 230, subd. (a) [“An employer shall not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that the employee is required to serve.”].Footnote 116
Labor Code, § 230, subd. (a).Footnote 117
Labor Code, § 230.8.Footnote 118
Labor Code, § 230.8, subd. (a).Footnote 119
Labor Code, § 230.8, subd. (a).Footnote 120
Labor Code, § 230.7; Ed. Code, § 48900.1.Footnote 121
Labor Code, § 230.7, subd. (a).Footnote 122
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [“[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.”]; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887 [“An employer may not discharge an at will employee for a reason that violates fundamental public policy.”].Footnote 123
Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 [“The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society’s interests are served through a more stable job market, in which its most important policies are safeguarded.”].Footnote 124
Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890 [“[T]his court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.'”].Footnote 125
Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665 [“But the employer’s right to discharge an ‘at will’ employee is still subject to limits imposed by public policy, since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public weal.”].Footnote 126
Labor Code, § 432.5; D’Sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927.Footnote 127