Employment Law Definitions

WRONGFUL TERMINATION: Being fired from a job for an unlawful reason. If you are fired and the employers' motivating factor is your race, sex, ethnic origin, pregnancy, disability, or medical condition it is a violation of the California Fair Employment & Housing Act. If you are terminated because you complained about or exercised your rights pursuant to a law, statute or regulation which has been adopted for the benefit of the public, you may have a cause of action for wrongful termination in violation of public policy. If you believe you have a cause of action for wrongful termination, it is prudent to seek the advice of an attorney as soon as possible.



WORKPLACE DISCRIMINATION: the area of law dealing with unfair or unequal treatment of a person or persons in the workplace based upon their belonging to a protected class, such as race, sex, ethnic origin, pregnancy, disability, or medical condition disability, or medical condition. If you believe you are being discriminated against, it wise to seek the advice of a lawyer as soon as possible.

If an employee is discriminated against or harassed, he or she must utilize the employer's grievance procedure and should consult an attorney.

When an employee is utilizing the employer's internal complaint procedure, it is often helpful to consult an attorney so that the employee takes the proper steps to remedy his or her complaint. If the employee follows the guidelines and the employer fails to take reasonable corrective action designed to prevent and curtail discrimination or harassment, the employer can be liable for violation of California's Fair Employment & Housing Act or Title VII.

If an employee fails to utilize the employer's internal complaint procedure, an employer can utilize a defense to defeat the claim. This defense allows employers to insulate themselves from liability for harassment charges if they can show they exercised reasonable care to prevent and correct harassing behavior (which requires an effective anti-harassment policy), and the complaining employee unreasonably failed to utilize the employer's internal complaint procedure. This defense, however, can be sustained if employers educate their employees and supervisors about harassment and other inappropriate workplace behavior. Training is an employer's first line of defense and should be conducted on an annual basis by a qualified trainer.



RACE DISCRIMINATION: if an employer takes an adverse employment action, including termination, failure to promote, or demotion, against the employee based on race or if an employee is subjected to harassment because of his or her race, it is a violation of the Fair Employment & Housing Act under California state law or Title VII under Federal law. Harassment is a form of discrimination. If you believe you are being discriminated against by your employer, getting legal advice from an attorney is the first step in effectively responding to the discrimination or harassment.

A person may establish what is called a "prima facie" case under Title VII or FEHA by showing (1) he or she belongs to a protective class; (2) he was subject to an adverse employment decision; (3) he was treated differently than similarly situated employees not in the protected class; and (4) there is sufficient causal connection between the different treatment and the protected status.

Prima facie means that you have evidence which is sufficient to establish a fact or case unless disproved. Once a plaintiff has established a prima facie case, the burden then shifts to defendants to articulate a legitimate, non-discriminatory reason for the act in question. If a plaintiff can prove a prima facie case and provide sufficient evidence to prove that the employer's asserted justification for its conduct is false, a judge or a jury can conclude that the employer unlawfully discriminated against the employee.

Additionally, if the plaintiff can submit additional evidence of discrimination, such as the employer's discriminatory statements or that the employer has discriminated against other individuals, it can help prove a case of race discrimination. For example, discriminatory remarks can create an inference of discriminatory motive to prove that the employer's decision was in fact motivated by discrimination.



SEXUAL HARASSMENT: the area of law dealing specifically with discrimination consisting of unwelcome verbal or physical conduct directed at an employee because of his or her sex. The motivation for the unwelcome conduct or comments can be sexual attraction or hostility. The harassment can involve same sex harassment, harassment by a man against or a woman or a woman against a man. Sexual Harassment can take the form of a hostile work environment or quid pro quo sexual harassment.

Hostile work environment: Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of his or her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt his or her emotional tranquility in the workplace, affect his or her ability to perform his or her job as usual, or otherwise interferes with and undermines his or her personal sense of well-being. The Fair Employment and Housing Act prohibits sex harassment and discrimination as well as other types of harassment and discrimination in California.

Title VII is the federal law which prohibits sex discrimination and harassment as well as discrimination and harassment because the person belongs to a protected class. The United States Supreme Court has stated that Title VII is violated where "the environment would reasonably be perceived, and is perceived, as hostile or abusive," and that "there is no need for it to be psychologically injurious."

Quid Pro Quo Sexual harassment: where a term of employment is conditioned upon submission to unwelcome sexual advances. A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, for example, sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee's body and the sexual uses to which it could be put. To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances.

When is an employer liable for harassment based on race, sex or some other protected class?

An employer is liable if a management level employee engages in the harassment. Courts have also held an employer liable when a management level employee is aware of co-worker harassment but fails to take adequate steps to stop the harassment. An employer can be liable where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII. Employers are liable for failing to remedy or prevent a hostile or offensive work environment of which a management-level employee knew, or in the exercise of reasonable care, should have known.



RACE HARASSMENT: the area of law dealing specifically with discrimination consisting of unwelcome verbal or physical conduct directed at an employee because of his or her race.

Hostile environment harassment is conduct which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

If an employee is discriminated against or harassed, he must utilize the employer's grievance procedure and should consult an attorney.

When an employee is utilizing the employer's internal complaint procedure, it is often helpful to consult an attorney so that the employee takes the proper steps to remedy his or her complaint. If the employee follows the guidelines and the employer fails to take reasonable corrective action designed to prevent and curtail discrimination or harassment, the employer can be liable for violation of California's Fair Employment & Housing Act or Title VII.

If an employee fails to utilize the employer's internal complaint procedure, an employer can utilize a defense to defeat the claim. This defense allows employers to insulate themselves from liability for harassment charges if they can show they exercised reasonable care to prevent and correct harassing behavior (which requires an effective anti-harassment policy), and the complaining employee unreasonably failed to utilize the employer's internal complaint procedure. This defense, however, can be sustained if employers educate their employees and supervisors about harassment and other inappropriate workplace behavior. Training is an employer's first line of defense and should be conducted on an annual basis by a qualified trainer.

When is an employer liable for harassment based on race, sex or some other protected class?

An employer is liable if a management level employee engages in the harassment. Courts have also held an employer liable when a management level employee is aware of co-worker harassment but fails to take adequate steps to stop the harassment. An employer can be liable where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII. Employers are liable for failing to remedy or prevent a hostile or offensive work environment of which a management-level employee knew, or in the exercise of reasonable care, should have known.



RETALIATION: when an employer takes an adverse employment action against an employee because he or she made any type of complaint of harassment or discrimination based on a protected class such as race, sex, ethnic origin, pregnancy, disability, or medical condition disability, or medical condition. California law prohibits retaliation against an employee for opposing employment practices which an individual reasonably believes to exist and believes to be in violation of the Fair Employment & Housing Act. It is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case.

How does a person prove a retaliation claim?

To succeed on a retaliation claim, a plaintiff must first establish a prima facie case. To establish such a case, the plaintiff must show that he or she engaged in a protected activity, that he or she was thereafter subjected by his or her employer to adverse employment action, and that a causal link exists between the two. A prima facie case of retaliation is established by a showing by the plaintiff that the adverse employment decision occurred after the protected activity of which the employer was aware. The causal link may be established by an inference derived from circumstantial evidence, such as the employer's knowledge that the employee engaged in the protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-retaliatory reason for the adverse action. The burden then shifts back to the plaintiff to show that the asserted reason is pre-textual.

How does a person prove the employer's reason for termination if pre-textual?

Pretext may be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge. Pretext may also be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination. Pretext can be proven if an employer is lying about the reasons why it terminated an employee. The United States Supreme Court has held that "it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation."



PUNITIVE DAMAGE CLAIMS: When an employer has acted intentionally to cause its employee harm or has engaged in despicable or fraudulent conduct in conscious disregard of an employee's rights.

How does an employee establish a claim for punitive damages?

An employer can be liable for punitive damages if an officer, director, or managing agent intends to injure a plaintiff or acts despicably with a willful and conscious disregard of the rights or safety of others or subjects a person to cruel and unjust hardship.

Under California Civil Code section 3294(b), an employer shall not be liable for punitive damages based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director or managing agent of the corporation.

  1. "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
  2. "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
  3. "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

An employer may not employ or continue to employ an employee who harasses another employee without taking action reasonably designed to protect the rights or safety of others. If the employer, after knowledge of or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable in punitive damages.



DEFAMATION: An false attack on the good reputation of a person, by slander or libel. Slander is verbal or spoken defamation. Libel is defamation by writing such as in a newspaper, book or a letter.



WHISTLE BLOWER COMPLAINTS: if an employee provides information to his or her employer or a government agency that he or she, in good faith, believes shows that the company or its managers, supervisors or employees are violating a law, statute or regulation which exists for the benefit of the public, and the employer takes an adverse employment action because of the complaint, an employee has a complaint for wrongful termination in violation of public policy. If an employee believes he is being retaliated against because he provided information to the employer that the company or its managers, supervisors or employees are violating a law, statute or regulation which exists for the benefit of the public, the employee should consult with an attorney as soon as possible.



FAMILY LEAVE VIOLATIONS: The California Family Rights Act requires private and public employers with 50 or more employees in a 75-mile radius to grant an unpaid family leave of up to 12 weeks annually to eligible employees.

Eligibility for Family Leave Violations

To be eligible to take such leave the employee must have worked for the employer for at least one year and must have worked for at least 1,250 hours during the year before the leave. The Family Medical Leave Act ("FMLA") allows eligible employees of a covered employer to take unpaid leave or to substitute appropriate paid leave for up to 12 workweeks in any 12 months with the assurance of job restoration. An employee is entitled to FMLA leave for the birth or care of a newborn or newly adopted child, or for the care of a close family member with a serious health condition or the employee's own serious health condition. If an employer retaliates or takes an adverse employment action because of an employee's exercise of his or right to family leave, it is a violation of the California Family Rights Act. An eligible employee is entitled to 12 workweeks of unpaid leave during any 12-month period for any one or more of the following reasons:

  1. to give birth or to care for an infant son or daughter;
  2. to care for a child placed with the employee for adoption or foster care;
  3. to care for the employee's spouse, son, daughter, or parent who has a serious health condition; or
  4. to address the employee's serious health condition making the employee unable to perform his or her job.

Definition of a serious health condition

A serious health condition includes an illness, injury, impairment, or physical or mental condition that involves inpatient care, i.e., an overnight stay in a hospital, hospice, or residential medical care facility. A serious health condition also includes an impairment or condition that involves a period of incapacity or any subsequent treatment in connection with that inpatient care, as well as continuing treatment by a healthcare provider which includes one or more of the following:

  1. any period of incapacity of more than three consecutive calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves (a) treatment two or more times by a healthcare provider, or (b) treatment by a healthcare provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the healthcare provider;
  2. any period of incapacity due to pregnancy or prenatal care;
  3. any period of incapacity or treatment for incapacity due to a chronic serious health condition which requires periodic treatment visits to a healthcare provider or assistant under direct supervision of such a provider, (b) continues over an extended period of time, and (c) may cause episodic rather than a continuing period of incapacity;
  4. any period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective;
  5. any period of absence to receive multiple treatments (and recovery from those treatments) by a healthcare provider or provider of healthcare services (by order or referral) either for restorative surgery or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment.

An employee can be required to provide medical documentation of the serious health condition.

An employer may require an employee to submit written certification from a healthcare provider to substantiate that his or her leave is due to a serious health condition of the employee or the employee's immediate family member. An employee's failure to comply with this requirement may cause an FMLA leave to be delayed or denied.

  • An employer also may require an employee to present a certification of fitness to return to work when an absence is caused by the employee's serious health condition, PROVIDED THAT the employer acts pursuant to a uniformly applied policy. An employer may delay the restoration of an employee to employment until the employer receives the certification of fitness.
  • An employer may require certification from an employee's (son's, daughter's, spouse's, or parent's) healthcare provider to substantiate a request for leave due to a serious health condition.
  • An employer must give written notice of a requirement for medical certification,
  • The employee must have at least 15 days to provide the certification.
  • The Department of Labor provides a form for certification for second or third opinions.

An employer may require the employee to go to a second and third doctor at the employer's expense.

  • An employer may require a second opinion at its expense. The healthcare provider designated to give the second opinion cannot be employed on a regular basis by the employer.
  • If the two medical opinions differ, an employer may require a third opinion from a jointly approved healthcare provider approved by the employer and employee. This opinion is at the employer's expense and is final and binding.
  • An employer must reimburse an employee for reasonable out-of-pocket travel expenses incurred to obtain the second and third medical opinions.


DISABILITY DISCRIMINATION: The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations so that workers with disabilities can secure and retain employment.

Reasonable Accommodation

The ADA prohibits employers from engaging in a broad range of discriminatory conduct on the basis of an employee's disability. Employers may not limit, segregate or classify jobs in such a way as to discriminate; contract or arrange with others to discriminate; utilize discriminatory standards, criteria, or methods of administration; or exclude or deny qualified individuals from jobs or benefits on the basis of disability. In addition, an employer must make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." Congress might have stopped with this language and allowed employers and the courts to determine what steps reasonable accommodation required. Instead, the law provides an exception if accommodation would cause "undue hardship" to the employer's business. The ADA therefore strikes a balance between the accommodations an employee desires to meet the job's requirements, and the investment and modifications an employer has to make to accomplish the accommodations.

Reasonable accommodations under the law can include changes to the physical work environment, or to the job. Changes of the former type include making facilities accessible and usable for persons with disabilities. Such changes might include wheel chair access doors, ramps or elevators, handrails, different chairs, desks or computers, different lighting, and different configurations for furniture or machinery. Job changes include such things as restructuring the job, shortening or modifying the work schedule, transferring the employee to another vacant job, acquiring or modifying necessary equipment, and adjusting examinations, training materials or policies.

An employer has a mandatory obligation to engage in the interactive process with the employee to determine whether reasonable accommodation is appropriate.

Employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations. The interactive process is a mandatory rather than permissive obligation on the part of employers under the ADA and this obligation is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation. An employer is liable if it fails to engage in the interactive process when a reasonable accommodation would otherwise have been possible.

What constitutes undue hardship for an employer?

"Undue hardship" under the ADA means "significant difficulty or expense" for the employer. Factors the employer may consider in weighing undue hardship include: 1) the nature and cost of the accommodation; 2) the financial resources of the facility requiring the accommodation; 3) the number of workers at the facility; 4) the impact of the accommodation on the facility's expenses, resources or operations; 5) the employer's overall size, nature and resources; 6) the type of operations covered; and 7) the relationship between the facilities covered and the business entity (employer) as a whole.

Disability Harassment:

In order to prevail on a disability harassment claim, an employee will have to prove that they:

  1. are disabled or regarded as being disabled;
  2. were subjected to unwelcome harassment;
  3. the harassment was because of their disability;
  4. the harassment affected a term, condition or privilege of employment; and
  5. the employer knew, or should have known, of the harassment and failed to take prompt remedial action.

The disability-based harassment must be "sufficiently pervasive or severe to alter the employee's conditions of employment and create an abusive working environment." In determining whether a work environment is abusive, Courts consider the frequency of the complained of conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. This is the same legal standard employed by Courts when examining hostile work environment claims under Title VII, the federal law which prohibits disability discrimination and harassment in the workplace.



MEDICAL LEAVE VIOLATIONS: The California Family Rights Act ("CFRA") and the federal Family and Medical Leave Act ("FMLA") provide eligible employees with a medical leave of absence for up to three months, plus a guarantee of reinstatement to his/her same or comparable job upon returning to work.

Employee Eligibility: Barring some narrow exceptions, an employee is eligible for a leave of absence of up to twelve weeks, with guaranteed reinstatement, if the employee works for an employer who has 50 or more employees, and the employee: (1) Has been employed by the employer for at least 12 months; (2) Has been employed for at least 1,250 hours during the 12- month period immediately preceding the leave; and (3) Is employed at a work site within 75 miles of where the employer employs 50 or more employees.

If an employee meets these requirements, then he or she must be granted a leave of absence for any of several reasons specified by law, such as when the employee is incapacitated due to a "serious health condition" which renders the employee unable to perform the essential functions of his or her job. Other permissible reasons requiring a leave of absence under both the FMLA and CFRA include the birth of a child, placement of a child for adoption/foster care, and the serious health condition of the employee's spouse, child, or parent.



PUBLIC POLICY VIOLATIONS: When an employer terminates an employee or takes an adverse employment action because an employee complained that the employer or it employees engaged in a violation of any law, statute or regulation that is designed for the benefit of the public. Additionally, if an employer terminates an employee or takes an adverse employment action because of an employee's race, sex, ethnic origin, pregnancy, disability, or medical condition, it can constitute a public policy violation.



SEVERANCE NEGOTIATIONS: When an employee is terminated from employment, laid off, unjustly accused of misconduct, or is constructively discharged because of an employer's mistreatment of the employee, an attorney can often negotiate a settlement of the employee's termination or resignation. In this type of action, the employee can be compensated for having to leave employment without filing a lawsuit.



WAGE AND HOUR VIOLATIONS: Some employers illegally claim that a salaried employee with a management title is not entitled to overtime pay. In fact, your title and method of compensation have nothing to do with your right to overtime in California.

Exempt or Non-Exempt An employee's title is not what is controlling in determining whether they are truly Exempt or Non-Exempt. In California, under the Labor Code as well as Industrial Wage Orders, a 50/50 test is used. To be considered exempt from overtime, one must spend over 50% of their time performing managerial, non- administrative duties. If an employee does not perform managerial duties over half the time, they are entitled to overtime compensation under California law. If you are concerned that your employer is not properly paying your wages, you should consult with an attorney.