This is an advertisement

Call Us Today: (855) 976-9228

We are trial attorneys

Who get results.


Request A Free Consultation

Wrongful Termination Laws in California: Everything You Need To Know

By on July 12, 2019

Table of Contents

Almost all California employers with 15 or more employees are covered by the major Federal employment protections for workers. These protections include Title VII, the Americans with Disabilities Act, and the California Fair Employment and Housing Act. 

Employers with 20 or more employees must also follow the requirements of the Age Discrimination in Employment Act. The main purpose of these laws is to create rules against specified types of discrimination. It should also be noted that several other laws (in addition to the above four) provide further protection of civil rights in employment. In most cases, the application of these laws may depend on the size of an employer’s work force and any financial relationship it may have with the state or federal government.

Employers may be the subject of discrimination charges based on alleged violations of several civil rights laws, including the Fair Employment and Housing Act, Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. When such a charge is filed, the civil rights agency responsible for monitoring compliance with the law in issue must generally investigate the charge. Since its possible for any employer to be accused of unlawful discrimination, employers should be familiar with the course of action that is likely to occur if a charge is filed. Also, they should understand some of the exemptions and procedural rules that may present a complete or partial defense to a discrimination charge.

The Fair Employment and Housing Act

Coverage

The Fair Employment and Housing Act creates a comprehensive coverage to protect against employment discrimination by protecting and safeguarding the right and opportunity of all persons to seek, obtain, and hold employment free from discrimination. It requires employers to treat all individuals equally by evaluating each person on the basis of individual skills, knowledge, and abilities and not on the basis of characteristics generally attributed to a group protected by the law. Its monitored and enforced by the Department of Fair Employment and Housing (“DFEH”). The Department of Fair Employment and Housing is authorized by Government Code Section 12930 to receive, investigate, and conciliate complaints alleging discrimination in employment. The Fair Employment and Housing Council (“FEHC”) was created when the Fair Employment and Housing Commission was abolished and is authorized to issue regulations interpreting the Fair Employment and Housing Act.

The regulations make clear that, with extremely limited exceptions, the Fair Employment and Housing Act applies to virtually all California employers, regardless of whether they are operated by the government, or are private, proprietary, or nonprofit. Further, any person acting as an agent of an employer is also considered an “employer.” The three principal exceptions to Fair Employment and Housing Act coverage apply to the following employers: 

  • Small Employers: Businesses and enterprises (other than a government entity) that do not regularly employ five or more persons on a full-time or part-time basis are exempt from most provisions of the FEHA.

However, the FEHA prohibitions against unlawful harassment apply to any person or business that regularly employs one or more persons, as well as to any person acting as an agent of an employer.

Religious Entity Exemption

An employer that qualifies as a “religious association or corporation not organized for private profit” is exempt from the FEHA. In 2000, the FEHA was amended to limit the scope of the exemption. As a result of the amendment, health care facilities operated by a religious association or corporation that are not restricted to adherents of the religion are covered as “employers” of persons who perform non-religious duties. 

Two statutory exceptions exist. 

  • Under the first exception, a religious corporation is not an “employer” with respect to either the employment of an individual of a particular religion or the application of the employer’s religious doctrines, tenets, or teachings, in any work connected with the provision of health care. 
  • The second exception provides that the term “employer” does not include a nonprofit public benefit corporation incorporated to provide health care on behalf of a religious organization with respect to employment of an individual of a particular religion in an executive or pastoral -care position connected with the provision of health care.

Government Employers

Federal employers are exempt from the Fair Employment and Housing Act. However, the State of California and any county, city, city and county, local agency, special district or political or civil subdivision of the state is subject to the Fair Employment and Housing Act, even if it has fewer than five employees.

Types of Protections

Employers that are subject to the Fair Employment and Housing Act are prohibited from discriminating against any person with respect to hiring, firing, compensation, and virtually all terms, conditions, and privileges of employment. Thus, in the absence of a valid defense, such employers will be liable if they discriminate on the basis of any of the following:

  • Race; 
  • Color; 
  • National origin;
  • Ancestry; 
  • Sex (including breastfeeding or medical conditions related to breastfeeding);
  • Gender (including a person’s gender identity and gender expression);
  • Pregnancy, childbirth, or related medical condition;
  • Marital status; 
  • Religious creed;
  • Physical disability; 
  • Mental disability; 
  • Medical condition (any health impairment related to or associated with a diagnosis of cancer and genetic characteristics);
  • Genetic information;
  • Sexual orientation;
  • Age 40 or over;
  • Military and veteran status.

Many of the above characteristics are also protected by one of the federal civil rights laws, such as Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. Therefore, in many respects the Fair Employment and Housing Act duplicates the requirements of federal law. However, the Fair Employment and Housing Act prohibits discrimination based on some characteristics left unprotected by the federal laws applicable to a particular employer. For example, while Title VII does not prohibit discrimination based on an individual’s sexual orientation, gender identity, gender expression, marital status, medical condition, or genetic characteristics, California law prohibits such forms of discrimination. 

Also, the Fair Employment and Housing Act is of major significance to California employers since its often the main statute that victims of alleged discrimination base their claims. It also allows greater remedies, and it provides a different enforcement procedure and statute of limitations than exist under federal law. For example, punitive damages and other forms of relief generally available in noncontractual actions under California law may be recovered for certain Fair Employment and Housing Act violations.

Applicants, Employees and Unpaid Interns 

The protections afforded by the Fair Employment and Housing Act extend to job applicants, employees, and, as of January 1, 2015, unpaid interns. For this purpose, the term “applicant” is defined to include any person who (1) files a written application, (2) otherwise indicates a specific desire to be considered for employment if the employer does not use an application form, or (3) can prove that he or she has been deterred from applying for a job by alleged discriminatory practices. However, it does not include an individual who willingly withdraws an employment application before being interviewed, tested or hired.

Employees and Temporary Help Firms

The term “employee” is defined broadly to include anyone under the direction and control of an employer under any oral or written appointment, contract of hire, or apprenticeship. The definition excludes the following individuals: 

  • Independent contractors under Section 3353 of the Labor Code (relating to workers’ compensation).
  • Children, parents, and spouses of the employer.
  • Persons employed under special licenses in a nonprofit sheltered workshop or rehabilitation facility. 
  • Employment agencies that procure employees for an employer. 

Partners and Independent Contractors 

People considered “partners” may seek the protections available under the state and federal employment discrimination laws when the facts demonstrate that they are actually employees. The determination of whether an individual is actually an “employee” generally requires a factual inquiry regarding the following: 

  • The true relationship among the partners, 
  • The method of compensation, 
  • The individual’s responsibility for partnership liabilities, 
  • The management structure of the partnership, and 
  • The individual’s role in that management.

Burdens of Proof and Production of Evidence

The Disparate Treatment and Disparate Impact Theories: 

It is important to understand that a claim of unlawful discrimination under Title VII can be predicated on either of two theories: 

  1. The first theory of liability is based on a claim of “disparate treatment.” This theory generally centers on a claim that an individual has been singled out and treated less favorably than other similarly-situated persons because of his or her race, sex, religion or any other criterion protected by Title VII. Claims predicated on the disparate treatment theory by their very nature require proof of intentional discrimination. Thus, proof of discriminatory motive is critical in such cases, although in some situations it can be inferred from the mere fact of differences in treatment. The disparate treatment theory is the only theory available in claims based on 42 U.S.C. Section 1981, which prohibits racial discrimination.
  2. The second theory of liability under Title VII is based on a claim of “disparate impact,” which is used to challenge practices that are fair in form, but discriminatory in operaton. In contrast to disparate treatment cases, a claim of disparate impact can be established without any proof of intentional discrimination. The theory applies where a business practice that is neutral on its face is shown to have a substantial, adverse impact on some group protected by the civil rights laws. It is now clear that this theory can be used to analyze subjective hiring practices as well as other business practices.

It is also clear that an employer cannot effectively defend a disparate impact claim by demonstrating either “good intent” or the absence of intent. Indeed, the United States Supreme Court has emphasized that the plaintiff in a disparate treatment case under Title VII always retains the ultimate burden of persuasion that an employer’s action is discriminatory. The employer’s burden in such cases is merely one of producing evidence. 

Under Title VII, The Civil Rights Act of 1991 makes it clear that the employer bears the burden of justifying practices shown to have a disparate impact by demonstrating that they are required by business necessity. Its important to note that the theory of discrimination used to challenge an employer’s practice or action may materially affect the burden of proof and the defenses that are available. For example, employers may assert the business necessity defense to a disparate impact claim or the bona fide occupational qualification (“Bona Fide Occupational Qualification”) defense to a disparate treatment claim. It is essential, then, that an employer understand the nature of the theory or theories alleged in order to prepare its defense. 

Burden in Disparate Treatment Cases

The Supreme Court noted that the party claiming discrimination in Title VII actions initially has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. (McDonnell Douglas Corp. v. Green; Texas Department of Community Affairs v. Burdine).  If this burden is met, the employer must then articulate some legitimate, non-discriminatory reason for its action. It need not persuade the court that it was actually motivated by the proffered reason. If the employer’s explanation is satisfactory, the plaintiff may attempt to prove, by a preponderance of the evidence, that the reasons offered by the employer were not its true reasons, but were a pretext for discrimination, and that discrimination was the real reason. Thus, the Court emphasized that the ultimate burden of persuasion in a case alleging intentional discriminatory treatment remains at all times with the person bringing the claim. The employer’s burden is merely one of producing evidence. 

Mixed Motive Cases 

In 1989, the United States Supreme Court described the burdens imposed on a plaintiff and employer in cases where an employment decision results from a mixture of legitimate and illegitimate motives. The Supreme Court held that, in “mixed-motive” cases under Title VII, if a plaintiff proved that a protected characteristic, such as gender, played a motivating part in an employment decision, the employer could avoid a finding of liability only by proving, by a preponderance of the evidence, that it would have made the same decision even if it had not taken the individual’s gender into account. Stated slightly differently, the employer had to show that its legitimate reason, standing alone, would have induced it to make the same decision. The Supreme Court explained that this balance of burdens was the direct result of Title VII’s balance of rights. It characterized the employer’s burden in mixed motive cases as an affirmative defense.

Statutory Changes 

The Civil Rights Act of 1991 overturned one aspect of the Supreme Court’s 1989 opinion by adding a new subsection to Title VII. It provides that an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. The employer may then have a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to the plaintiff. If the employer establishes that it would have taken the same action in the absence of the impermissible motivating factor, a court may not order the employer to hire, reinstate, promote or provide back pay to the complainant. In such cases, a court may grant relief only for the harm that actually results from the unlawful practice. Such relief can include injunctive or declaratory relief, attorney’s fees, and costs.

The Fair Employment in Housing Act Standard

In 2013, the California Supreme Court addressed the standards and remedies that apply under the Fair Employment in Housing Act in mixed motive cases. It held that the proper standard of causation in a Fair Employment in Housing Act discrimination or retaliation claim is “a substantial motivating reason.” When a mix of discriminatory and legitimate reasons motivates the employer’s decision and the plaintiff has shown that discrimination was a substantial factor motivating the termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. If the employer makes such a “same-decision showing,” the plaintiff cannot be awarded damages, back pay, or an order of reinstatement. However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief, attorney’s fees and costs.

Burden In Disparate Impact Claims

In addition to claims of intentional discrimination (which are sometimes called “disparate treatment” claims), unlawful discrimination can be established based on the “disparate impact” theory. A claim that an employer’s practice is unlawful due to a disparate impact can arise where a policy or practice that is neutral on its face has an adverse effect on employment opportunities of individuals in a protected group. Subjective hiring practices can be analyzed under a disparate impact model in the same manner as other business practices. A disparate impact case generally involves a three-stage analysis: 

  • Prima Facie Case of Disparate Impact: In order to succeed on a disparate impact theory, a plaintiff must establish a “prima facie” case of discrimination. First, the plaintiff must demonstrate by statistical evidence that the challenged policy or practice, although neutral on its face, has a discriminatory effect on persons of a protected class. 
  • Business Necessity: If the plaintiff is successful in meeting the burden of showing a disproportionate impact on protected persons, the burden shifts to the employer to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. 
  • Alternative Practices: A plaintiff may attempt to prevail in a disparate impact case even if the employer establishes a “business necessity” for the practice in question. If the employer demonstrates that the challenged practice is required by business necessity, the plaintiff has the opportunity to show the availability to the employer of alternate employment practices that would achieve the same business ends, with a less adverse impact.

Fair Employment in Housing Act Standards

The California Supreme Court and many appellate decisions have found that, generally, a job applicant who is denied a job or an employee who is discharged must meet the following elements in order to establish a prima facie case of discriminatory discharge: 

  • That he or she belongs to a protected class; 
  • That he or she was qualified for the position sought or was performing competently in the position held; 
  • That he or she suffered adverse employment action, such as termination, demotion, or denial of an available job; and 
  • Some other circumstance suggests a discriminatory motive.

For example, the last element may be established by evidence that others not in the protected class were retained in similar jobs, and/or his or her job was filled by an individual of comparable qualifications not in the protected class. The specific elements of a prima facie case may vary depending on the particular facts. If a plaintiff establishes a prima facie case, a presumption of discrimination arises that is rebuttable. The employer must rebut the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer meets this burden, the presumption of discrimination disappears. The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.

An employer may prevail on a motion for summary judgment if, for example, it can proceed directly to the second step of the formula by setting forth competent, admissible evidence of the nondiscriminatory reasons for its actions. The plaintiff can avoid a summary judgment in favor of the employer in such a case only by pointing to evidence that raises a rational inference that intentional discrimination occurred.

Business Judgment

Its necessary for a plaintiff in a discrimination case to show discrimination, not just that the employer’s decision was wrong, mistaken or unwise. As one court has stated, an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. The employer’s stated legitimate reason does not have to be a reason that a judge or jurors would act on or approve. The employer is allowed to exercise its business judgment without second guessing. 

Defenses

Both the Fair Employment in Housing Act and Title VII recognize defenses to certain types of discrimination. The applicability of a particular defense may depend in part on the theory of discrimination, i.e., intentional discrimination or disparate impact, used to challenge an employer’s policy, practice or decision. If applicable, the existence of a legal defense may make permissible a practice or employment-related action that would otherwise be unlawful. This is illustrated by a practice that, although discriminatory and ordinarily unlawful in the absence of a defense, is justified by a business necessity. 

Other defenses may not “justify” a particular practice, but may nevertheless enable an employer to evade liability for the practice. An example of the latter kind of defense occurs where a plaintiff’s claim is filed with the administrative agency or court after the time allowed for filing such a claim has expired. Similarly, an employer may be able to defend a claim successfully where the agency or court in which an action is commenced lacks jurisdiction over either the employer or the subject matter of the allegations. 

Employers should carefully evaluate all discrimination claims and consider any possible substantive or procedural defenses they may have to combat such claims. However, they should not assume that defenses will be available when formulating policies simply because a potential defense seems to fit a particular situation. Indeed, employers are strongly advised to consult with legal counsel before relying upon a defense they believe may be available to justify a practice, test or screening procedure that appears discriminatory, e.g., the use of all-male or all-female nurse aides, sales personnel, flight attendants, servers, bartenders, cooks or hosts. The job applicant or employee who alleges unlawful discrimination must carry the burden of proving either that the challenged employment practice intentionally discriminates in an impermissible manner (e.g., based on sex or race) or that it has a discriminatory effect. 

The employer bears the burden of establishing the availability of and proving the requirements of any defense. Although it is not possible to list each of the defenses potentially available to an employer in a given situation, the following defenses should be evaluated:

  • Actions Justified By Legitimate, Nondiscriminatory Reasons
  • Bona Fide Occupational Qualification
  • Business Necessity
  • Reasonable Factors Other Than Age
  • Job-Relatedness
  • Affirmative Action Plans
  • Specialized Defenses
  • Equal Pay Act Defenses
  • Effect of State Court Decisions
  • Avoidable Consequences Doctrine
  • Other Defenses

Actions Justified By Legitimate, Nondiscriminatory Reasons

As noted above, a job applicant or employee must meet the burden of proof in establishing employment discrimination. An employer can seek to defend itself against such a claim by attacking the plaintiff’s argument that the challenged action was discriminatory. In a disparate treatment case alleging a discriminatory failure to hire or promote, the employer can defend its actions by providing evidence that the plaintiff was either not qualified for the job or was less qualified than the individual who was hired or promoted. Employers can also create a strong inference that there was no discriminatory motive by establishing that the same person was responsible for both the hiring and firing of a plaintiff in a case alleging a discriminatory discharge. This is called the “same actor inference.” A disparate treatment case should not succeed where an employer has a legitimate, nondiscriminatory reason for its action. Thus, a final decision-maker’s wholly independent, legitimate decision to terminate an employee can insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have an employee fired. 

Bona Fide Occupational Qualification

Title VII, the Fair Employment in Housing Act, and the Age Discrimination in Employment ActActexplicitly recognize the Bona Fide Occupational Qualification defense to claims of employment discrimination. Employers often attempt to utilize the Bona Fide Occupational Qualification defense where they maintain a practice that, on its face, excludes from an employment opportunity an entire group of persons on a basis protected by the law (e.g., all women). The cases demonstrate that it is extremely difficult to provide an absolutely clear definition of the Bona Fide Occupational Qualification defense. The Fair Employment in Housing Commission regulations make it available where the employer can “prove that the [discriminatory] practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.” The “safety and efficiency” requirement, to the extent upheld by courts, will substantially limit the number of situations in which the defense will be available. Furthermore, the Bona Fide Occupational Qualification defense is not available in cases involving discrimination based on an individual’s race or color. The Fair Employment in Housing Act has been amended to incorporate a clear standard for religious corporations that employ persons to perform religious duties. Religious corporations may restrict eligibility for employment in any position involving the performance of religious duties to adherents of the religion for which the corporation is organized. 

Business Necessity

In contrast to the Bona Fide Occupational Qualification defense, the business necessity defense originally had no specific basis in Title VII or the Fair Employment in Housing Act. The business necessity defense evolved from court decisions as a defense to claims that facially neutral employment practices have discriminatory effects. Moreover, although it has been found closely related and somewhat similar to the Bona Fide Occupational Qualification defense, the two are not identical. Indeed, the Bona Fide Occupational Qualification defense is applicable to cases involving allegations of intentional discrimination whereas the business necessity defense is asserted in disparate impact cases. Although the business necessity defense is more lenient for the employer than the Bona Fide Occupational Qualification defense, it is extremely difficult to define based upon existing case law.

Reasonable Factors Other Than Age

The Age Discrimination in Employment Act creates an exemption for employer actions that are “otherwise prohibited” but “based on reasonable factors other than age.” The Supreme Court has made it clear that the plaintiff in a disparate impact case is obligated to isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities. This prevents employers from being found liable for the numerous of innocent causes that may lead to statistical imbalances. If a plaintiff does so, an employer seeking to defend a disparate impact claim on the basis of Reasonable Factors Other Than Age must produce evidence raising the defense and persuade the fact finder that the defense is meritorious.

Job-Relatedness

The Fair Employment in Housing Commission regulations state that certain testing devices that operate in a discriminatory manner may be lawful if job-related. According to the regulations, a testing device or other means of selection that is neutral on its face, but that has an adverse impact on persons protected by the Fair Employment in Housing Act is permissible only upon a showing that the selection practice “is sufficiently related to the essential function of the job in question to warrant its use.” Where the requirements of the defense exist, it may be used to justify height or weight standards as well as other selection devices. This is similar to the business necessity defense in several ways. Indeed, it is often used to denote the existence of a business necessity defense where a policy or practice has an adverse impact on employment opportunities of individuals in a protected class. It is recognized under Title VII as well as the Fair Employment in Housing Act.

The Fair Employment in Housing Commission regulations also recognize the exemption where security regulations established by the State of California provide the impetus for the discriminatory practice. 

Affirmative Action Plans

The Equal Employment Opportunity Commission and the Fair Employment in Housing Commission encourage employers to implement voluntary affirmative action plans to improve opportunities for women and minorities. For this purpose, affirmative action is described in Equal Employment Opportunity Commission guidelines to include those actions appropriate to overcome the effects of past or present practices, policies or other barriers to equal employment opportunity. The Equal Employment Opportunity Commission guidelines permit voluntary affirmative action and afford protection against liability to those who take such action. Both the Equal Employment Opportunity Commission guidelines and the Fair Employment in Housing Commission regulations provide that discrimination that occurs as a result of the implementation of a bona fide affirmative action plan (so-called “reverse discrimination”) may be lawful.

Specialized Defenses

In addition to the general defenses applicable to most forms of discrimination, certain discrimination claims introduce specialized issues and specialized defenses. For example, a claim of religious discrimination may be based upon an allegation that the employer failed to make reasonable accommodations to the religious practices of an applicant or employee. Where reasonable accommodations are required in the context of religious discrimination or other discrimination claims, such as disability discrimination, an employer can attempt to defend the practice in question by showing that the accommodation suggested would result in an undue hardship. 

Equal Pay Act Defenses

To be viable, an equal pay claim must be premised on an employer’s failure to provide equal pay without regard to sex for equal work performed under similar working conditions on a job requiring equal skill, effort, and responsibilities. Consequently, an employer may attempt to defend itself against such a claim by demonstrating that the positions in question do not involve equal skill, effort or responsibilities.

Effect of State Court Decisions

The United States Supreme Court has concluded that a federal court must afford full faith and credit in a Title VII suit to a state court’s determination in a review of a state administrative decision.108 Consequently, an employer can contend that a favorable state court decision bars a subsequent action under Title VII. 

Avoidable Consequences Doctrine

Under the avoidable consequences doctrine, a person who is injured by another individual’s wrongful act will be barred from recovering damages that could have been avoided by reasonable efforts or expenditure. The California Supreme Court has recognized the applicability of the doctrine to employment cases, including sexual harassment cases under the Fair Employment in Housing Act.

Other Defenses

Crosner Legal, P.C. does not purport to provide an exhaustive list of all defenses applicable to discrimination claims. Indeed, employers are advised to carefully research and examine all defenses potentially applicable to each claim, and consult an attorney when necessary.

Remedies

Various remedies may be imposed against employers who have engaged in unlawful discrimination. The most common approach to determining an appropriate remedy is to “make whole” the individual who is the victim of unlawful discrimination. However, remedies available under certain state and federal civil rights laws are not restricted to make whole relief. Punitive and compensatory damages may also be awarded in appropriate cases. Examples of the types of “make whole” and other forms of relief that may be provided under these laws include the following: 

  • Back Pay
  • Fringe Benefits
  • Front Pay
  • Other Forms of Equitable Relief
  • Punitive and Compensatory Damages

Back Pay

The most obvious loss sustained by many victims of discrimination consists of lost wages. Accordingly, the Equal Employment Opportunity Commission and the Fair Employment in Housing Commission have authority to award back pay to victims of unlawful discrimination. In determining the amount of back pay that is awarded, mitigating circumstances, such as interim earnings received from another employer and amounts earnable with reasonable diligence, should operate to reduce the amount of the back pay award. Similarly, a voluntary withdrawal from the work force will bar recovery as of the date of the withdrawal. However, unemployment insurance benefits are not utilized to reduce back pay awards in California. Its clear that employers bear the burden of proving that an employee has failed to mitigate damages in an employment discrimination suit. To satisfy this burden, an employer must establish that: 

  1. The damage suffered by the employee could have been avoided (i.e., that suitable positions were available that the employee could have discovered and was qualified to fill), and 
  2. The employee failed to use reasonable care and diligence in seeking such a position. Moreover, the decision suggests that back pay will be limited if an employee finds suitable employment after his or her separation, but is then legitimately discharged from the new position for misconduct.

Fringe Benefits

The victim of unlawful discrimination can also be awarded fringe benefits that were lost due to the unlawful conduct or their monetary equivalent as part of the back pay award. For example, courts have been willing to award health, welfare, pension, sick leave, and dental benefits that the employee would have earned in the absence of unlawful discrimination.

Front Pay

Front pay occasionally functions as compensation for an employee’s training or relocating to another position, and may be made in lieu of reinstatement when the antagonism between the employee and employer is so great that reinstatement is not appropriate. Front pay may also be awarded under Title VII and the Fair Employment in Housing Act where discriminatory barriers to promotional opportunities, positions or lines of progression are eliminated and an employee is restored to his or her “rightful place” in the work force. 

Other Forms of Equitable Relief

Additional forms of equitable relief that may be provided include awards of “constructive seniority” that would have accrued but for the unlawful practice, and setting goals and timetables for correcting past discriminatory actions. “Red circling” rates of pay represents another form of relief. It provides an individual who starts at a lower-paid position than that which he or she would have occupied in the absence of discrimination the higher (“red-circled”) rate of compensation that he or she would have earned.

Punitive and Compensatory Damages

The remedies available under Title VII, the Americans with Disabilities Act, and the Fair Employment in Housing Act can include punitive and compensatory damages. However, the State and federal laws differ considerably in this area. Employers should therefore understand and assess their exposure to liability under the law by contacting an attorney. 

Fair Employment in Housing Commission’s Authority: 

The California Legislature amended the Fair Employment in Housing Act, effective January 1, 1993, to authorize the Commission to award compensatory damages and administrative fines. When the Commission was abolished, the authority to impose administrative damages and fines ended.

Undocumented Workers

A person’s status as an undocumented worker does not bar that person from the protections of the employment laws. The courts and enforcement agencies recognize the right of undocumented workers to some remedies available under the federal and state civil rights statutes. The Equal Employment Opportunity Commission takes the position that awarding some forms of monetary remedies to undocumented workers who are victims of discrimination promotes the goal of deterring unlawful discrimination without undermining the purposes of the immigration laws. California Legislation declares: “All protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status, who have applied for employment, or who are or who have been employed, in this state.” (SB 1818).

Personal Liability

Supervisors cannot generally be held personally liable for employment discrimination under Title VII, the Age Discrimination in Employment, the Americans with Disabilities Act, or the Fair Employment in Housing Act. 

However, the Fair Employment in Housing Act establishes a basis to impose personal liability against any employee found guilty of unlawful harassment. Such liability may be found whether the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Consequently, a person may be held liable even if his or her employer is not liable. Authority also exists to impose personal liability for unlawful retaliation.

Constructive Discharge Standards

Circumstances may arise where an employee resigns and claims that he or she was constructively discharged. If an employee is able to demonstrate that a constructive discharge did occur and that it violated a legal obligation of the employer, the employee can pursue the same rights and remedies as would be available if the employee were simply fired. The standard could be applied, for example, if an employee demonstrates that he or she has been constructively discharged in violation of a contractual or statutory obligation, such as the obligations imposed by the state or federal anti-discrimination laws. Constructive discharge claims are quite common and can form the basis of substantial damages where the applicable standards are met. To meet the standards, an employee must prove: 

  • That his or her working conditions at the time of the resignation were so intolerable or aggravated that a reasonable person in his or her position would have been compelled to resign, and
  • That the employer either intentionally created or knowingly permitted the intolerable working conditions. 

Discipline and Termination of Employees

Union Employees

An employer who is a party to a collective bargaining agreement must comply with the express and implied provisions of that agreement pertaining to discipline and termination of employees. Under most union agreements, employees can be discharged only for “just cause” or “good cause,” and disputes over what constitutes just cause for discipline are typically decided by arbitrators selected by the parties in grievance resolution proceedings. Accordingly, the concept of “at will employment,” which allows employers to terminate employees at any time without “just cause,” is usually inapplicable to employees covered by a collective bargaining agreement.

Non-Union Employees

Employees Covered by Employment Agreements: 

Relatively few non-union employees have written or unwritten employment agreements that guarantee employment for a specified duration. Where employment agreements exist, however, individuals who are parties to such agreements may enjoy protections against discharge that are otherwise unavailable. These protections arise primarily from two sources: 

  1. The employment agreement itself
  2. Labor Code Sections 2920 through 2927.

The employment agreement itself.

Where an employment agreement restricts the employer’s right to discharge, the employer may be liable if it breaches its contractual obligations. Therefore, the agreement itself affords direct protection to the employee in such instances. Even if an agreement does not explicitly restrict termination by the employer, the Labor Code confers protections to some employees under certain circumstances. Where a written or oral agreement specifies a period of employment greater than one month, Labor Code Section 2924 limits the employer’s ability to terminate the employee before the expiration of the period specified in the agreement to situations involving (1) the employee’s willful breach of duty in the course of his or her employment, or (2) the employee’s habitual neglect of his or her duty or continued incapacity to perform it. Discipline short of actual or constructive termination is not specifically addressed by the Labor Code in the absence of unlawful retaliation or discrimination. 

In contrast to the rules applicable to employees with employment agreements for a period in excess of one month, an employer has broad discretion according to statute to terminate an employee who is hired either for an unspecified duration, or for a period of one month or less. Since most employees do not have employment contracts and are not hired for a specified term, the rules applicable to the termination of such employees are extremely important. Labor Code Section 2922 states that an employee who is not hired for a specified term in excess of one month “may be terminated at the will” of the employer. The statute also states that the employee enjoys an unfettered power to terminate the employment relationship at his or her will. Thus, such individuals are sometimes referred to as “at-will employees.”

Labor Code Sections 2920 through 2927.

Labor Code Section 2922 creates a presumption that either party is free to terminate the employment relationship at will, at any time and for any reason, as long as the termination does not offend principles of public policy or violate rights conferred by other statutes, such as the FEHA, Title VII, or the National Labor Relations Act. Accordingly, employers often assume they have the unrestricted right to discharge an at-will employee for any reason, as long as neither the basis for (nor the effect of) the termination breaks any law (e.g., a result of unlawful retaliation or discrimination based on such factors as sex, race, color, religion, national origin, or union affiliation) or public policy (e.g., a discharge based on a refusal to commit an unlawful act). However, it is imperative that employers understand that the presumption of at-will employment may be overcome by evidence of a contrary intent.

Unlike discrimination claims filed with an administrative agency, which investigates and attempts to resolve such claims without charge to the employee, actions in court usually necessitate engaging legal counsel at the employee’s personal expense. The availability of a jury trial and the potential recovery of substantial monetary damages, including punitive damages, back pay, and compensation for other losses, will provide the impetus for many employees to file suits. In fact, literally hundreds of wrongful termination suits have been filed against employers of virtually all sizes and in all industries.

Public Policy Limitations: 

An employer cannot discharge an employee, whether or not hired for a specified term, for reasons that contravene the dictates of public policy. The Supreme Court has recognized that public policy cases fall into one of four categories: 

  1. the employee refused to violate a statute
  2. the employee performed a statutory obligation
  3. the employee exercised a statutory right or privilege
  4. the employee reported a statutory violation for the public’s benefit

This includes situations where, as a condition of employment, an employer coerces an employee to commit an act that violates public policy or restrains an employee from exercising a fundamental right, privilege or obligation. Similarly, it would be unlawful to fire an employee for registering internal complaints regarding the safety of aircraft parts or for refusing either to commit an illegal act or to engage in nonconsensual sexual acts. It also would appear impermissible to terminate employees in violation of other statutes, e.g., for refusing to take a polygraph examination, for attending compulsory jury or witness duty, for disclosing information regarding an unlawful act to a government or law enforcement agency, or for asserting claims under the FEHA. A termination based on such unlawful reasons could result in the employer’s liability for wrongful termination of the employee. 

Expectations of Continued Employment

There is significant favor shown to the legitimate expectations of employees continued employment. This occurs where an employee’s longevity of employment has been accompanied by additional factors that further justify such expectations, such as written or verbal assurances of continued employment or policies and practices that preclude discharge without good cause. In such situations, courts have appeared willing to prohibit termination without good cause. Moreover, while it can be argued that the workers’ compensation law provides the exclusive remedy for emotional distress claims that are not tied to an alleged statutory violation, terminations that have been administered in a malicious manner have resulted in intentional infliction of emotional distress claims. When evaluating these issues, employers should remember that they may be held responsible for the acts of their agents and supervisors.

However, the presumption of at-will employment created by Labor Code Section 2922 can be overcome by evidence that the employer and employee had a contrary intent. In order to enforce the actual understanding of the parties to a contract, courts evaluate the parties’ conduct to determine if it demonstrates that an implied contract existed. Among the factors considered when determining whether an agreement exists include:

  • the personnel policies or practices of the employer, 
  • the employee’s longevity of service, 
  • actions or communications by the employer reflecting assurances of continued employment, and 
  • the practices of the employer’s industry. 

The true nature of the contract is determined based on the totality of the circumstances. 

Additional Statutory Restrictions

The following are examples of statutes that extend protections to employees due to public policy: 

 Jury Duty and Witness Duty

Labor Code Section 230 prohibits an employer from discharging or discriminating against an employee for taking time off to serve on a jury or to appear in court as a witness if the employee provides the employer reasonable notice of his or her court obligations. 

Workers’ Compensation Injuries

Labor Code Section 132a prohibits retaliation against an employee who has filed or made known an intention to file a workers’ compensation claim. Of note, the restrictions on employers imposed by Labor Code Section 132a are construed very broadly.

Labor Commission Claims

Labor Code Section 98.6 prohibits discrimination against an employee for filing a bona fide complaint with the Division of Labor Standards Enforcement, or for testifying before that agency. The statute authorizes reinstatement, back pay, and lost benefits to victims of unlawful discrimination. Additionally, the Fair Labor Standards Act also prohibits retaliation against employees who file complaints or testify in proceedings under the Act.

Political Affiliations

Sections 1101 – 1105 of the Labor Code ban the adoption or implementation of a rule that interferes with employee’s rights to engage in politics or to become a candidate for public office. It also forbids any effort by an employer to coerce or influence employees to follow or refrain from following any particular course of political activity. These sections have been asserted to protect the promotion of homosexual rights as a form of political activity.

Medical Information

The Confidentiality of Medical Information Act prohibits discrimination against employees for refusing to sign an authorization for the disclosure of protected medical information.

Garnishments

Labor Code Section 2929 prohibits the discharge of an employee whose wages have been threatened with garnishment, or have been subjected to garnishment for the payment of one judgment. The federal Consumer Credit Protection Act of 1968 provides an additional source of protection to employees whose wages are garnished due to a single indebtedness.

Reporting Safety Violations

Labor Code Section 6310 prohibits discrimination against an employee either for filing (or testifying in connection with) a complaint with the Division of Occupational Safety and Health, or participating in an occupational health and safety committee. Moreover, under certain circumstances, Labor Code Sections 6311 and 6312 prohibit the discharge or lay off of an employee who refuses to perform work where an unsafe working condition creates a real and apparent hazard to the employee or other workers. 

Whistleblower Protections

Labor Code Section 1102.5 forbids retaliation against an employee because he or she discloses information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of State or federal law. However, the statute does not ban actions against employees who violate the confidentiality of the lawyer-client privilege, the physician-patient privilege, or trade secret information.

Disclosure of Wages

Labor Code Section 232 prohibits employers from requiring, as a condition of employment, that any employee refrain from disclosing the amount of his or her wages. It also protects employees who disclose the amount of their own wages to others from discipline, discrimination or termination as a result of such disclosures.

Alcoholics and Addicts

Labor Code Sections 1025 through 1028 require employers with 25 or more employees to reasonably accommodate any employee who wishes to participate voluntarily in an alcohol or drug rehabilitation program, provided it does not impose an undue hardship on the employer. The law does not prohibit the discharge of an employee who, because of the current use of alcohol or drugs, is either unable to perform his or her duties or to perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others. Termination of an employee with an alcohol or drug problem who requests an unpaid leave and who is able to perform his or her duties competently and safely is arguably prohibited by the new law. The law also requires employers to make reasonable efforts to safeguard the privacy of the fact that the employee is enrolled in a rehabilitation program.

Polygraph Examinations

Termination of an employee for refusing to submit to a polygraph, lie detector, or similar test violates Labor Code Section 432.2. The federal Employee Polygraph Protection Act also prohibits discrimination against such individuals. This is explained further in Section 16.2 of the Manual. 

Time Off to Work as Firefighter

Labor Code Section 230.3 prohibits employers from discharging or in any manner discriminating against an employee for taking time off to perform emergency duty as a volunteer firefighter. The statute entitles an employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against because he or she has taken time off to perform emergency firefighter duty to reinstatement and reimbursement for lost wages and work benefits caused by the employer’s unlawful acts. The statute contains exemptions for any public safety agency or provider of emergency medical services who determines that the employee’s absence would hinder the availability of public safety or emergency medical services. 

Time Off to Appear in School

Labor Code Section 230.7 prohibits employers from discharging or in any manner discriminating against an employee who is the parent or guardian of a pupil because that employee takes time off to appear in the school of a pupil pursuant to a request made under Section 48900.1 of the Education Code. In order to fall within the protective shelter of this statute, however, an employee must, prior to taking the time off, give reasonable notice to the employer that he or she is requested to appear in the school. Any employee who is unlawfully discharged, threatened with discharge, demoted, suspended or in any other manner discriminated against in violation of the statute is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the employer’s unlawful acts.

Family School Partnership Act

Labor Code Section 230.8 governs employers who employ 25 or more employees at the same location. The statute prohibits covered employers from discharging or in any way discriminating against an employee who is a parent, guardian, or grandparent with custody of a child in kindergarten or grades 1 to 12, inclusive, or attending a licensed child day care facility, for taking off up to eight hours in a calendar month (up to 40 hours in a year) to participate in activities of the school or licensed child day care facility. In order to benefit from these protections, an employee must, prior to taking the time off, give reasonable notice to the employer of the planned absence. An employee must utilize existing vacation, personal leave, or compensatory time off for purposes of the planned absence, unless otherwise provided by a collective bargaining agreement. If requested to do so by the employer, an employee must provide written documentation from the school that the employee participated in school activities on a specific date and at a particular time. For purposes of the law, “documentation” means whatever written verification of a parental visit the school deems appropriate and reasonable. If an employee is unlawfully discharged, threatened with discharge, demoted, suspended or in any other manner discriminated against in violation of the statute, the employee will be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the employer’s unlawful act. 

Election Officers

Section 1655 of the Elections Code forbids employers from discharging any employee because he or she misses work to serve as an election officer on the day of an election. 

Forced Patronage of Employers

Labor Code Section 450 prohibits an organization from compelling or coercing any employee to patronize the organization or any other person to purchase something of value. It is arguable that termination of an employee who refuses to submit to unlawful coercion may give rise to a wrongful discharge action. 

Participation in Abortions

Health and Safety Code Section 25955(a) protects health care workers who refuse to participate in abortions against discipline or discharge as a result of such a decision. Workers who wish to benefit from this protection must file a written statement indicating a moral, ethical or religious basis for their refusal to participate in abortions. Interestingly, the same statute protects individuals who participate in the performance of an abortion at one hospital or facility from discrimination by another hospital, facility or clinic that does not permit the performance of abortions. Section 25955 also prohibits employers from refusing to employ a person because of that individual’s refusal for moral, ethical or religious reasons to participate in an abortion, unless the individual would be assigned in the normal course of business of a hospital, facility or clinic to work in those areas where care for abortion patients is provided. In addition, the statute does not prohibit hospital facilities or clinics that permit the performance of abortions from inquiring whether an employee or prospective employee would advance a moral, ethical or religious basis for refusal to participate in an abortion before hiring or assigning such a person to that part of the organization where care for abortion patients is provided. 

NLRA

The National Labor Relations Act (“NLRA”) prohibits discrimination against an employee due to their union affiliation, support, or membership. It also proscribes discrimination against an employee who has filed or testified in connection with an alleged unfair labor practice. 

Other Statutory Restrictions

Numerous other statutory restrictions also limit the right of employers to discipline and terminate employees. Many of these additional rules are contained in federal statutes that are examined in Section 2.2 of the Wrongful Discharge, Staff Reduction and Employment Practices Manual, by Richard J. Simmons, published by Castle Publications, Ltd. 

Defensive Practices

Recent decisions prohibiting “wrongful termination” are meant to provide certain employees with protection against unfair, unlawful or arbitrary conduct of their employers. The cases do not flatly prohibit termination of long-term or other employees. On the other hand, they do underscore the need for employers to adopt sound personnel policies and termination procedures that are fair and reasonable, and that enable employers to achieve their legitimate business objectives. It is thus clear that employers can adopt and implement practices that will substantially enhance their ability to avoid wrongful termination and discrimination claims, as well as successfully defend themselves against those claims that are instituted. Some of the practices and policies that employers should consider are described below.

Progressive Discipline

A system of progressive discipline is one in which discipline is imposed in graduated levels of severity against an employee who is unable or refuses to meet the performance standards established and maintained by the employer. Under such a system, each penalty is more severe than the penalty that immediately preceded it. A system of progressive discipline can assist employers to rectify poor performance of an employee by informing the employee of the problem and providing information as to the manner in which performance can and indeed must be corrected. It also serves as fair notice to the employee that a failure to improve performance or further violation of the employer’s policies will result in further discipline, including possible termination. Therefore, in addition to enhancing the working environment, it demonstrates the employer’s good faith in attempting to rehabilitate an employee’s performance, where possible. It also should be remembered that some kinds of egregious conduct will warrant immediate termination despite the employer’s general commitment to progressive discipline. Consequently, any written policy regarding progressive discipline should provide the employer sufficient flexibility to administer the appropriate disciplinary action based on the circumstances that exist. It is also prudent to incorporate a statement in the policy confirming that the employment relationship is terminable at will. 

Two-On-One-Rule

Conferences and meetings with a non-union employee on whom discipline may or is to be imposed often are the subject of inquiry in subsequent proceedings in which the discipline is challenged. For example, the fairness of the employer’s investigation and its willingness to provide the employee an opportunity to explain the conduct in issue may be examined in a court action concerning the termination or in proceedings before an administrative agency, such as the EEOC, the FEHC, or the Employment Development Department in an unemployment insurance hearing. Accordingly, it is important for the employer to preserve the integrity of the conference, to conduct it fairly, and to ensure its ability to prove that it conducted its investigation and disciplinary procedures fairly. Moreover, employees may make admissions or provide evidence or leads to evidence during such conferences that are important to the employer’s position. Employers will be in a better position to explain what occurred in such a conference, to defend spurious claims of harassment, and to corroborate such explanations if two representatives of management are present at a conference with one employee. This also will enable the employer to refute any inaccurate or misleading statements later made by the employee. Furthermore, since several years may elapse before a termination case goes to trial, it is more likely that one of the management representatives involved in the conference will still be employed by the employer and available to testify at such a trial. Where two management representatives attend such a conference, both representatives should document what transpires during the conference. 

Documentation

Thorough and good documentation of disciplinary actions is extremely important. This is explained in further detail in Section 15.3(a) of this chapter. Accordingly, employers are advised to develop and implement a system of documenting all disciplinary actions and to sensitize their supervisors to the significance of such procedures.

Periodic Evaluations

Many employers conduct periodic performance evaluations of their employees on a semiannual or annual basis. Such evaluations generally provide a useful management tool. They can improve the morale of employees meeting performance expectations and provide fair warning to employees whose performance is unsatisfactory that improvement is needed. In all cases, the evaluations made of employees should be clearly documented in their personnel files. Employers who conduct periodic evaluations should keep certain considerations in mind.

First, an evaluation of an employee should not be completed without first reviewing prior evaluations of the same employee. This includes former evaluations conducted on the last formal evaluation date (e.g., six or 12 months earlier) and any interim evaluations or disciplinary actions taken against the employee since that time. If any previous comments or discipline are still intended to affect the employee’s status, they should be specifically identified in the current evaluation. Failure to do so may give the employee and possibly a court the impression that any previous problems have been corrected and forgotten. 

Second, all evaluations should constitute a fair, honest, and candid assessment of an employee’s performance and, where appropriate, must be “brutally honest.” Although employees may initially resent a harsh yet candid criticism of their performance that is in fact warranted, this is the only means by which they will have the opportunity to know of and correct their performance to an acceptable level. 

Third, if the employee’s future employment is in jeopardy, this fact should be noted. Where feasible, the employer should also inform the employee of specific problems that have been identified and that should be corrected. 

Fourth, supervisors with whom the employee has had contact should be consulted before the evaluation is completed. Overlooking the input of a supervisor who has had meaningful interactions with the employee can undermine the accuracy and effectiveness of the evaluation process. Further, if the supervisor is aware of performance deficiencies that are not mentioned in the evaluation process, a system that emphasizes progressive discipline and fair warning of problems can be severely frustrated. This can create particular problems if the same performance problems later resurface. 

Fifth, employers should sensitize supervisors and others conducting evaluations to the importance of performance appraisals and the significance the evaluators’ actions may have in subsequent proceedings before a court or an administrative agency. The temptation of many supervisors to provide “satisfactory” or “good” evaluations to employees who do not deserve them can result in dramatic evidence that can be used against the employer if the employee is later fired. Consequently, it is extremely unwise to inflate evaluations or take a “nice guy” approach to the evaluation process where circumstances do not warrant it. 

Sixth, consistency in imposing performance standards and fairness in measuring performance as well as administering the evaluation process are extremely important from an employee morale and an equal employment opportunity perspective.

Seventh, some employers may wish to note in their evaluation forms that the evaluations should not be viewed to conflict with the at-will status of employees. For example, a statement such as the following can be included at the bottom of the evaluation form: “Evaluations are intended to advise employees of some of their strengths and weaknesses. Nothing in the evaluation form or process should be viewed to conflict with the right of employees and the employer to sever the employment relationship at will, at any time, either with or without cause or advance notice.” 

Eighth, clear documentation of the evaluation should be made and included within the employee’s personnel file. 

Examination of Company Policies and Precedents

It is important that employers examine their personnel handbooks, policies and procedures manuals, and other personnel-related manuals and documents. It is essential that these documents and all personnel forms be kept current and reflect changes in the law. Such documents and forms should also be sanitized to delete all inappropriate language. For example, guarantees of “life-time” or “permanent” employment are generally inadvisable. It is also imperative that the employer identify and evaluate all precedents involving the same policies, infractions, rules, and standards before implementing disciplinary action. One of the most common problems that employers experience in their defense of discrimination and wrongful discharge claims is the failure to uniformly and consistently apply the employers’ policies and standards. Similarly, it is important to examine the particular circumstances that lead to discipline in light of relevant precedents. An employer will be in a better position to reach fair and consistent results by carefully investigating applicable precedents and the facts surrounding a current incident. 

Glowing Recommendations

One of the most common yet troublesome problems encountered by employers when attempting to justify a termination of an employee occurs when an employer provides a “glowing recommendation” to an employee who does not deserve it. Frequently, this will arise when an employer fires an employee for misconduct or poor performance but, due to a desire to avoid further friction or a judicial dispute, attempts to resolve the matter by providing the employee a favorable or glowing recommendation. While the employer may achieve its objectives in some instances, in other cases this approach will inevitably backfire. Consequently, due to the problems introduced in a wrongful termination or discrimination case when an employer is confronted with its glowing recommendation of an employee who is fired for good cause, it generally is inadvisable to offer or provide one where it is not deserved. An inaccurate recommendation also is extremely misleading to a prospective employer. Similar problems surface where an employee’s supervisor or a different supervisor or manager provides an employee who was terminated involuntarily a favorable reference. To avoid these problems, many employers deem it advisable to maintain rules prohibiting any individual from providing a reference without first obtaining approval from the personnel department. A policy of this kind may enable an employer to avert the problems that can arise where a supervisor provides a positive evaluation that is later used to undermine the employer’s efforts to justify the discharge.

Defamation Issues

Section 43 of the Civil Code provides that, subject to legal qualifications, every person has the right of protection against defamation and from personal insult. Defamation consists of false and unprivileged communications that expose a person to hatred, ridicule, or contempt or that have a tendency to injure the person in his or her occupation. Defamation can occur in written form, in which case it may be referred to as libel, or in oral form, where it ordinarily is called slander. A detailed examination of the subject of defamation is beyond the scope of the Manual. However, a few points should be made in connection with an employer’s investigation and ultimate termination of an employee, particularly where information concerning the offense involved would be injurious to the employee’s reputation or occupation. Among other concerns, the employer should attempt to ensure that it can support its allegations. It should also attempt to limit communication of the reason for a discharge to those individuals who absolutely need to know. Although employers have a qualified privilege to provide statements without malice to prospective employers and certain others concerning employees, this privilege is extremely limited. The statutory privilege extends to communications provided, without malice, at the request of a prospective employer regarding a job applicant’s job performance, qualifications or eligibility for rehire by the employer. It is also noteworthy that the truth of a statement will operate as a defense to a defamation claim. Nevertheless, employers bear the burden of proving truth. Their ability to do so will be affected by the strength of the available evidence and reliability of potential witnesses. Employers must also be concerned about providing favorable recommendations that mislead recipients about a former employee’s qualifications. In contrast, employers have successfully defended privacy claims where employees lacked a reasonable expectation of privacy and the employers had the legitimate objective of preventing conflicts of interest. 

Workplace Surveillance

Effective January 1, 1999, Labor Code Section 435 prohibits employers from making audio or video recordings of employees in certain work areas considered to be private. Section 435(a) prohibits employers from causing “an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes unless authorized by court order.” Section 435(b) prohibits the use of any recording made in violation of the statute for any purpose. The statute applies to all private and public employers, except for the federal government. A violation of the statute is an infraction. 

Request a Free Consultation





I understand and agree that by clicking "Submit" and transmitting information to CROSNER LEGAL, P.C. I am agreeing to Terms of Use, Privacy Policy, and Attorney Advertising Policy. I also understand and agree that I am not forming an attorney-client relationship with CROSNER LEGAL, P.C. and CROSNER LEGAL, P.C. will have no duty to keep confidential the information I am now transmitting to CROSNER LEGAL, P.C. by clicking "Submit."

Request a Free Consultation





I understand and agree that by clicking "Submit" and transmitting information to CROSNER LEGAL, P.C. I am agreeing to Terms of Use, Privacy Policy, and Attorney Advertising Policy. I also understand and agree that I am not forming an attorney-client relationship with CROSNER LEGAL, P.C. and CROSNER LEGAL, P.C. will have no duty to keep confidential the information I am now transmitting to CROSNER LEGAL, P.C. by clicking "Submit."