A. Sexual Harassment

Sexual harassment in the workplace is one of the hottest legal issues of the past ten years. State and federal laws prohibit harassment of employees or job applicants based on sex, race, national origin, or any other classification protected by law. The regulations define harassment to include verbal harassment, physical harassment, unwanted sexual advances, and visual forms of harassment (such as derogatory posters, cartoons, and drawings). Also, it is an unlawful employment practice for an employer to fail to take all reasonable steps to prevent harassment from occurring.

Sexual harassment claims are often divided into two categories:
1. Quid Pro Quo Harassment. An allegation of quid pro quo sexual harassment asserts that sexual considerations were required in return for employment benefits or opportunities, or employment itself. In other words, a benefit is conferred or denied based on an employee's response to a supervisor's sexual proposals.
2. Hostile Environment Harassment. A hostile environment allegation is one in which the plaintiff contends that the employer has created, or allows others to create, a pattern of conduct pertaining to sex that contributes to an unpleasant, intolerable or hostile environment, so pervasive that it alters the conditions of employment. Physical touching, jokes, posters and cartoons, as well as unsolicited comments, can create this type of environment. It is this kind of harassment that has generated the bulk of discussion and uncertainty in the law. The focal point of a hostile environment inquiry is whether a reasonable person's work environment would be affected by the conduct at issue.

An employer may also be liable for harassment by its agents or supervisors. Under California law, an employer may be absolutely liable for harassment by a supervisor. Under federal law, knowledge or notice may be given greater weight. An employer may also be liable for harassment by nonsupervisory employees (and even vendors) where the employer, or its agents or supervisors, knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

Employers in a managerial capacity may be held individually liable for sexual harassment under certain circumstances as well.

B. Race and Color Discrimination

State and federal laws prohibit discrimination based on race, including employment decisions affecting hiring, termination, compensation, assignments, employment opportunities, and other terms, conditions, and privileges of employment.

The prohibitions against discrimination extend to employees of all races. The rights protected by these laws apply to prohibit discrimination both under color of state law and by nongovernmental entities. As such, actions by private employers, as well as state and local government employers, fall within the provisions of these laws.

C. National Origin Discrimination

State and federal laws prohibit employment discrimination based on national origin or ancestry, including employment decisions affecting hiring, termination, compensation, assignments, employment opportunities, and other terms, conditions, and privileges of employment.

D. Religious Discrimination

Both state and federal laws prohibit employment discrimination based on religion. In addition, religious discrimination by public employers is prohibited by the U.S. Constitution and the California Constitution. It is therefore unlawful to discriminate on religious grounds in hiring, termination, and compensation, and in the terms, conditions, and privileges of employment.

There is generally an affirmative duty imposed on an employer to reasonably accommodate an employee's or applicant's religious beliefs and practices unless the accommodation would impose an undue hardship.

These laws do not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of its activities.

E. Sex Discrimination

Employers may not make distinctions among employees based solely upon sex or sex plus another characteristic (such as family responsibilities), on sex stereotyping, or on sex-related traits. State and federal laws prohibit employers from discriminating on the basis of sex in employment decisions affecting hiring, termination, compensation, assignments, employment opportunities, and other terms, conditions, and privileges of employment.

An employer may not base the terms, privileges, or conditions of employment on the employee's gender. Even where the employer may have legitimate reasons to make an adverse employment decision, it may not, under the mixed motive theory, take the employee's gender even partly into account. Both male and female employees are protected under the statutes. The prohibitions against sex discrimination encompass even employment practices that are not facially discriminatory but that have the effect of treating one sex differently from the other.

Both state and federal laws regarding sex discrimination have been extended to prohibit discrimination based on pregnancy. California employers have specific obligations to accommodate pregnant employees.

F. Age Discrimination

State and federal laws prohibit employment discrimination based on age with respect to employees 40 years of age or older. These prohibitions apply to public as well as private employers.

G. Disability Discrimination

The American Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with either a mental or physical disability. Covered employers are, generally, those engaged in industries affecting commerce that have 15 or more employees.

State laws also prohibit employment discrimination because of an individual's physical disability, mental disability, or medical condition. These laws all recognize the special barriers that disabled people face in the workplace, and thus impose an affirmative duty on employers to provide reasonable accommodation to disabled employees and applicants. It is an unlawful employment practice to fail to make reasonable accommodation for the known physical or mental disability of an employee or applicant unless the accommodation is demonstrated by the employer to produce undue hardship in its operation.

H. Marital Status Discrimination

California state law includes marital status as one of its protected classes. As a consequence, it is unlawful to discriminate on the basis of marital status in any aspect of the employment relationship. "Marital status" is defined to include an individual's state of marriage, nonmarriage, divorce or dissolution, separation, widowhood, annulment, or other marital state. It is generally unlawful, for example, to inquire into the marital status of a job applicant. Similarly, the employer may not ask a job applicant to reveal the applicant's "maiden name," although the employer may generally inquire whether an applicant has previously used any other names if the inquiry is for some legitimate business purpose and not for the purpose of revealing the applicant's marital status.

I. Retaliation

Both state and federal laws prohibit an employer from discriminating against any person who:

1. Opposes any employment practice forbidden under the particular statute, or
2. Files a complaint, testifies, or assists in any proceeding under the statute.

For there to be actionable retaliation for opposing an employment practice, the practice need not be demonstrably unlawful. It is sufficient that the opposing person had a reasonable belief that the employer was engaged in an unlawful practice. While retaliation cases often involve termination, any adverse employer action is actionable. Retaliation may also occur, for instance, where an employer refuses to hire an applicant because he or she engaged in protected activities.

J. Sexual Orientation Discrimination

State and federal laws prohibit employment discrimination based on sexual orientation in employment decisions affecting hiring, termination, compensation, assignments, employment opportunities, and other terms, conditions, and privileges of employment.

A. Employment Contracts

A number of jurisdictions recognize employment contracts, whether implied or express in nature. Such agreements confer enforceable rights for employees even in "at-will" employment states. California has judicially recognized enforceable employment contract rights which, in the proper circumstances, may give rise to claims for wrongful discharge. Otherwise, the general rule in California is employment is terminable at-will by either party in the absence of an employment contract for a definite period.

B. Good Faith and Fair Dealing

The concept of good faith and fair dealing is that neither party to a contract may do anything which injures or interferes with the rights of the other to enjoy benefits of their employment bargain. California specifically implies by operation of law the covenant of good faith and fair dealing to all employment contracts. Under California law, it is actionable if either party to a contract acts to deprive the other of benefits provided by the agreement.

1. Violation of Public Policy State and federal law provide a remedy to employees who have been terminated for reasons which are against public policy. Common examples include employees who are terminated for so-called "whistle-blowing."
2. Other Torts Several other claims may be raised by discharged employees, including claims of fraud, intentional infliction of emotional distress, unfair competition, invasion of privacy and claims related to the wage and benefit issues.

The information in this booklet was compiled to help CAP/MPT members spot potential issues which should be considered prior to undertaking certain employee-related actions. It is not intended to be comprehensive, nor is it intended to fully cover methods of avoiding such claims.

CAP/MPT members also have access to a toll-free hotline they can call with specific questions. These questions have typically focused in three general areas: how to handle an employee situation, such as hiring or firing, in such a way that you are not exposed to a potential lawsuit; how to deal with a threat or an allegation from an employee; and requests for technical information such as the appropriate time limit for someone requesting a leave of absence.

Here is an alphabetical listing of frequently-discussed subjects in employment practices liability:

At-Will Employment:

In employment litigation, employees often allege written, oral, or implied contracts that employment can only be terminated for good cause. An at-will statement is a warning to employees that no such contract exists, with employment terminable at the discretion of either the employee or employer. These at-will statements, to be effective, must appear in employment applications, handbooks, and other such employment papers. At-will statements will not, of course, protect against assertions of illegal employment treatment, such as race or sex discrimination.

Constructive Discharge:

This is the concept of harassing an employee into resignation, which has the same effect as terminating the employee.

Drug/Alcohol Testing:

In general, except for employees that fall within jurisdiction of the Federal Department of Transportation, such testing cannot be done randomly, but only for preemployment or upon reasonable cause.
Such testing raises complex issues of employee privacy and medical information acquisition, usage, and disclosure.

Eavesdropping/Wiretapping:

Both federal and California laws regulate electronic surveillance, and this topic includes questions of personal computer files and personal-code protections of e-mail and voicemail.

Employee Benefits:

The Federal government and California have comprehensive legislation regulating administration and termination of various employee benefits. Employee Discipline/Misconduct: This is the law of balancing interests of the employers and the employees. As examples, employees may not be disciplined for certain arrests, or for certain marijuana offenses that are more than two years old.

Employee Evaluations:

Evaluations often represent the most important employer evidence in employment litigation, regarding employee and employer disputes over quality of performance. Evaluations may also not include law-protected performance deficiencies, such as certain law-protected absences.

Employee Handbooks:

Handbooks are not required, but when they exist, create expectations and therefore should be accurate and may require inclusion of a provision describing family leave.

Employee/Employer Ownership:

This is the law of ownership of intellectual property, such as trade secrets, and an employer's retrieval of physical property from an employee. (Property retrieval most commonly occurs at the time of an employee's termination.)

Employee Personal Information:

A large number of very specific laws protect various aspects of employment and privacy. Medical information, specifically information regarding AIDS, is particularly protected.

Employee Representation:

This is the law of unions, which can arise whenever employees act in concert, even though a union such as the Teamsters may not be present. Employees jointly requesting a pay raise, for example, raise protections of the National Labor Relations Act.

Employment Contracts (Oral & Written, Express & Implied, Personal Service Agreements):

Writings, oral representations, and employment practices can sometimes create employment contracts where no contract was ever intended.

Employment References:

Bad references can invite defamation litigation, and untrue good references invite litigation by those relying on the references. This is the law of balancing the employer's free speech against privacy interests of the employee, and against the interests of those relying on the references.

Employment Taxes:

Various laws require various federal and California tax withholding, with such examples as income tax, Social Security, state disability insurance, and unemployment insurance.

English-Only Rules:

Such rules can discriminate on the basis of national origin, but may be justified upon demonstration of strict business need.

Garnishment:

Federal and California law prohibit an employer from making decisions upon the basis of only one garnishment.

Holidays:

Pay for time not worked on holidays need not be included in overtime computations; allowing employees to save holidays, with broad employee discretion on when to take the holiday, can result in the holiday being treated as vacation, with all the attendant vacation requirements.

Indemnification of Employees:

In general, this is the law of reimbursing employees for losses through employment, with examples such as reimbursing employees for mileage whenever the employee uses the employee's personal vehicle, and, in certain circumstances, requiring an employer to pay for the defense of an employee in litigation related to employment.

Independent Contractors:

The law of distinguishing between independent contractors and employees is very complex, and this distinction can vary between governmental agencies.

Investigations of Employee Complaints/Grievances:

Such investigations can implicate a wide variety of laws; as examples, various laws prohibit retaliation against employees complaining, and other laws raise protections of employee-witnesses that may be interviewed, such as protections against intimidation, and whether an employee may have right to representation at such an interview. Special laws also regulate the use of professional private investigators and undercover employee surveillance.

Layoffs:

Employment reductions, for some employers, require 60 days notice to employees and various government agencies, and selection of employees to be terminated can raise implications of discrimination on the bases of age, race, sex, or other protected characteristics.

Leaves of Absences:

Federal and California laws provide various leaves, each with its own characteristics. Examples are military leave, family leave, drug and alcohol rehabilitation, workers' compensation, learning to read, training to become a voluntary firefighter, participation in a child's school disciplinary process, participation in a child's school activities, voting, and jury duty.

Minimum Wage Requirements:

California and federal law impose minimum wage requirements for various employees.

OSHA:

The Federal government and California have occupational safety agencies, which regulate everything from notices of presence of carcinogenic materials to the sharpness of coathooks. A good example lies with the California regulations regarding response to needle sticks and cuts arising from the delivery of healthcare.

Overtime Pay:

Federal and California law require premium payments, for certain hours worked; these requirements are sometimes complex, and can vary by industries. Personnel Files: California law requires giving the employee a copy of any paper the employee has signed, and also requires, with limited exceptions, providing the employee with right of inspection of personnel files.

Personnel Policies:

These policies need to comply with federal and California law, and when these policies are more generous than required by law, can be legally enforced. Picketing/Solicitation/Distribution: This is the law controlling employee speech in and around the workplace, and varies depending on the time, place, and content of the speech.

Polygraph Testing:

Federal and California law severely limit employment polygraph testing, and there are similar limitations upon other electronic truth testing, such as voice stress tests, and psychological analysis through written tests.

Posting/Notification Obligations:

Many federal and California laws require specific postings providing employees notice of protections through those laws.

Preemployment Practices (Applications, Inquiries, Selection, Testing):

California law prohibits charging applicants a fee to file an employment application and requires filing application forms with the state. Inquiries and testing for applicants can raise implications of discrimination on protected bases such as race, color, national origin, or sex.

Record Keeping Obligations:

Federal and California law impose various requirements for maintaining employment records and similarly require minimum periods of time for keeping such records.

Settlement Agreements:

Employee disputes, especially disputes arising from termination, are often resolved through settlements. These settlement agreements have many provisions, usually including releases of liability, and there are complex limitations regarding the extent of such releases.

Severance Pay:

Severance pay promises can be legally enforced; changing severance pay practices prior to a layoff may invite litigation, and, depending upon the particular form of severance pay, may subject the severance pay to the federal benefits regulatory scheme known as ERISA (Employee Retirement Insurance Security Act).

Sick Leave:

Allowing an employee broad discretion to use sick leave for purposes other than the employee's illness may transmute the sick leave into vacation, with all the attendant vacation requirements. Various law-mandated leaves of absences sometimes allow, and sometimes prohibit, employers from requiring sick leave usage during such leaves.

Unemployment Insurance Benefits:

Employees are generally eligible for such benefits, except upon resignation and termination for gross misconduct.

Vacation Pay:

Vacation pay is not required, but where provided, such pay vests daily, and must be paid at termination. (Employers may place maximum accruals upon such vacation pay.)

Wage Payment Laws:

Many laws control payment of wages. Examples are: all wages are due at the time of termination, with the employer having 72 hours to deliver final pay to any employee who resigns without having given 72 hours notice; hourly employees must be paid twice a month, and salaried employees are only required to be paid once a month; payroll checks must be on accounts within the State of California; employers must post notices of pay days; employees must be given final payment at the site of employment.

Workplace Violence:

Special laws allow employers to seek injunctions to protect employees from workplace violence, and other laws impose employer liability for failures to provide such protections.