Legal Question in Employment Law in California

Dear Stephanie:

California is an employment-at-will state. That means that any employer can take an adverse action, including termination, against an employee at any time for any reason that is not against the law or discriminatory.

An adverse employment decision that is against the law would be, for example, disciplining an employee who refused to sign a form saying she received a break, when she did not. The reason for this is that under California law, an employer is required to give an employee 2 15-minute breaks in an 8 hour shift.

A discriminatory reason would be one based on race, color, religion, sex, national origin, disability, genetic information, or age. Here is an Equal Employment Opportunity Commission publication explaining illegal discrimination: http://www.eeoc.gov/facts/qanda.html. California also prohibits discrimination based on pregnancy, filing a workers� compensation claim, and sexual orientation.

There are exceptions to employment-at will. Those are:

1. An employment contract. In California, an employment contract does not necessarily have to be in writing. It may be implied by the actions of the employer, or what the employer says.

2. An employment manual that states employment is not at will, or that certain procedures must be followed to discipline or terminate an employee.

3. A union agreement.

4. In California, there is a good-faith exception as well, which means that in the termination must not be made in bad faith or maliciously. A bad faith or malicious reason for termination would be, for example, making up allegations that an employee stole money in order to terminate the employee.

5. In California, an employee may not be terminated for reasons in violation of California�s public policy � such as termination for pregnancy.

6. There may be additional exceptions that apply to public employees, such as police officers and employees of government agencies.

A �hostile work environment� is related to the issue of discrimination and retaliation. A �hostile work environment� arises when an employee is harassed in the workplace because they are in a protected class, or in retaliation for filing a complaint. A prime example of a hostile work environment is in the movie North Country, where a woman working in a mine was subjected to sexual taunts and assaults because she was a woman. (A �hostile work environment� does not happen just because a workplace is awful to work in, or an employer is unreasonable, arbitrary or capricious � the bad treatment has to happen because of discrimination or retaliation.)

If you think the adverse employment action was discriminatory, here is a link to the EEOC website for more information: http://www.eeoc.gov/ explaining discrimination. California discrimination complaints are made to the Department of Fair Employment and Housing (DFEH) at http://www.dfeh.ca.gov/DFEH/default/. Your complaint must be filed with the DFEH within a year of the discrimination!

If you think the adverse employment action was wrongful but not discriminatory, a government agency cannot help, but an attorney may be able to help.

If the adverse employment action violated a Union agreement, you need to work with your Union representative first.

Hello, Stephanie.

Putting you on disciplinary action for any problems associated with your health condition is retaliatory and generally unlawful. More facts are needed about your workplace, your performance and the exact steps taken by the employer in order to determine your rights and the employer's obligations.

Thanks, and feel free to follow up.

Arkady Itkin

San Francisco / Sacramento Employment Lawyer

http://www.arkadylaw.com