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Once the employer knows or should know about sexual or other harassment, it has a duty to take immediate and appropriate corrective actions to end it. The employer’s response to harassment complaints against a particular employee or a supervisor must be reasonable calculated to end the harassment. This of course doesn’t mean that an employer has to terminate the alleged harasser’s employment upon receiving a complaint of harassment. A warning, reprimand, mandatory harassment training, suspension or administrative leave are some of the remedies available to an employer which may prevent further harassment and remind the harasser of the consequences of his actions.

However, conducting an investigation of harassment but taking no steps to protect employee from further harassment will not insulate an employer from liability. And if earlier discipline did not end the harassment, a more severe discipline is required. In Intlekofer v. Turnage (9th Cir. 1992) an employer was held liable when harasser, who had been verbally counseled once, repeated his harassing conduct, but employer did not take sufficient additional steps to prevent and/or remedy harassment.

Although the necessary response varies with each case, typically, an employer should:

Binding arbitration is the most common type of resolution procedure or employment disputes between employees and employers in California. Contractual arbitration is a process in which the employee and the employer agree to submit their disputes to binding resolution by one or more impartial third persons.

The common perception is that contractual arbitration is better for employers than employees. The theory is that arbitrators are likely to be conservative professionals who will not be influenced by emotional considerations that could sway a jury. In fact, this perception is particularly strong among employment lawyers in San Francisco and Alameda counties where the juries are notoriously liberal and are likely to award significant verdicts, which makes trials of employment cases in San Francisco and surrounding counties particularly desirable to employees their attorneys. Thus, employment lawyers practicing in the San Francisco area study their clients’ arbitration agreements carefully to attempt to find a way to dismiss agreements to arbitrate as unenforceable due to duress, unconscionability and other reasons, in order to avoid arbitration and have a jury trial.

But the perception that arbitrating an employment dispute is better for employers is not always true. Employers with strong legal defenses may do better before a judge than an arbitrator. Where critical facts to a case are in dispute, especially in discrimination and harassment cases, employers with strong witnesses may do better before a jury than an arbitrator, especially if an employee is a poor witnesses and has been already shown to a jury to exaggerate his claims and to be inconsistent about his complaints of discrimination and/or harassment.

At the conclusion of leave under Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA), an employer must reinstate an employee to the same or an equivalent job, unless he or she is a “key employee” who is given appropriate notification. One main limitation on this rules is that the employee returning to work is not entitled to reinstatement if unable to perform an essential function of the position because of physical or mental condition, including the continuation of a serious health condition.

In order to be deem equivalent, the alternate position must be virtually identical to the prior position in terms of pay, benefits, and working conditions, and involve substantially similar duties and responsibilities. In one case, a nurse who formerly worked a day shift was offered a full-time night shift position with the same duties and benefits, or a part-time day position with reduced benefits. As a matter of law, that offer was not an offer of an equivalent position. Hunt v. Rapides Healthcare System LLC (2001). An employee returning after FMLA leave may not be disqualified from bonuses which are not related to performance, but need not be credited with time spent on FMLA leave when the bonus is based on employee’s total performance or production.

If a salaried employee is deemed a “key employee” and reinstatment would result in substantial and griveous economic injury to an employer, the employer may deny reinstatement after propery notifing the employe and affording that employee an opportunity to forgo the leave or return from leave. 29 USC 2614(b)(2).

No matter what side of the workplace dispute you are on – whether you are an employee, a supervisor or the employer, it is important to remember one fundamental fact about California employment law: not every conduct which seems unfair is actually illegal, and not every violation of the law is worth pursuing through court or other enforcement bodies. Failure to take this very practical reality into consideration leads many employees, companies and attorneys to waste a lot of time, money, energy, and emotions. An aggrieved employee who believes that he was wrongfully terminated and discriminated will usually not bother to actually look up or inquire about the law and find out whether what happened to him was actually discrimination and what exactly makes his termination wrongful. An employee would rely on his anger and pure gut feeling in pursuing legal action without even knowing whether the employer who mistreated him or her actually violated the law.

This employee will likely not listen to the words of a seasoned employment lawyer who would explain to him why he shouldn’t be pursuing the claim, and will continue to look for an attorney to take his “case” until he finds one whose lack of experience in distinguishing meritorious claims from all the others and his possible need for more business will cause him to actually take the case and pursue it toward a dead end.

Employers, especially smaller companies who don’t even have a well-trained human resources department often fall victims to their ignorance of the law as well. They believe that they can avoid liability by simply relying in their actions and relationship with employees on what they think is fair. A common trap into which such employers fall is believing that the at-will employment doctrine gives them more protection when terminating employees than it actually does under the law. In one case, one of my clients was an at-will employee in San Francisco who was terminated two days after notifying his supervisor that he has a disability. When I contacted the owner of the company, he arrogantly told me that I was wasting my time and that he did everything right – according to him, my client was an at-will employee who could have been discharged for any reason or no reason. While this is in part true, his employer didn’t know and didn’t bother to find out that there are quite a few significant limitations on at-will employment doctrine in California. If he did, he would probably recognize that his actions were illegal, and he would opt to engage in settlement negotiations. Instead, he brushed me off. Many months and thousands of dollars in attorneys fees later, he was facing a far greater liability to my client, eventually paying more than twice as much as he could have settled for at the outset of my representation.

Your employer has the right to the undivided loyalty of its employees. The duty of loyalty is breached and may give rise to the employee’s liability in a civil suit for unfair competition when the employees takes action adverse to the employer’s best business interests. Stokes v. Dole Nut Co. (1995). For example, employees who take for themselves, against their employer’s interests and to the employer’s loss, business opportunities in the employer’s line of business may be subjected to liability.

Normally, the unfair competition actions are governed by California Labor Code 2860, which states that “Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. In one case, while still employed, several employees of a company attempted to divert business to their newly formed company by using confidential client information. The court found that their conduct constituted misappropriation of employer’s trade secrets. Courtesy Temporary Service, Inc. v. Camacho (1990).

However, an employee may announce a change of his or her employment to the current employer’s customers, if no solicitation of customers to switch vendors / service provides takes place. “Solicit” implies “personal petition to a particular individual to do a particular thing” which in the context of employment and unfair competition means personal petition to customers to change the way they conduct business.

Generally, it is always a good idea to memorialize the terms of any agreement, including employment contracts, in writing. This helps avoid confusion, misunderstanding, lack of clarity in terms, and it also allows to not rely on their memory as to what they agreed on.

However, it is well established under California law that an oral agreement can be valid and enforceable. This is usually the case when the conduct of the parties suggests that they must have had an agreement about their relationship. For instance, if a worker is hired by his employer without signing any written employment agreement, a contractual employee-employer relationship is still created. The parties might later dispute the terms of employment (most commonly compensation and wages due), but if the employee presents evidence of performing work for the employer, statements from witnesses, and history of past compensation by the same employer, lack of written contract will not relieve an employer from his obligation to pay his employee wages and fulfill other applicable duties.

Still, certain contracts must be in writing in order to be valid under the “Statute of Frauds” exception. The most common such contracts are: (1) contracts for sale of goods for over $500; (2) a contract for services that will take one year or longer to perform, marriage, divorce, land sale transactions, and a promise to pay for debts of another (surety or loan guarantee).

I get calls from many workers in the San Francisco Bay Area who turn toCalifornia Department of Fair Employment and Housing for help, filing a complaint against their employer with one or both of those agencies for harassment, discrimination and/or wrongful termination. There is a tendency among workers to expect that these agencies will actually aggressively defend employees’ rights pursue resolution of their discrimination and harassment claims, when in fact this hardly ever happens.

While the objective of establishing those agencies was to prevent unlawful discrimination, In the vast majority of cases, EEOC and DFEH are of little use in representing employees in their discrimination, harassment and/or wrongful termination claims. These agencies commonly send a notice to the aggrieved employee that they were not able to determine whether discrimination or any other wrongful conduct took place due to “insufficient evidence.” Unless the employer admits fault, these agencies will not issue any clear findings. Having said that, there is still value in having those agencies involved and having them contact your employer, which will likely “motivate” the employer to take some action to remedy the situation. This is especially useful if you continue being employed by the same employer.

However, if you have been unlawfully terminated, waiting for EEOC of DFEH to take action is a waste of time as those agencies have no power to either reinstate you or force your former employer to pay damages for unlawful conduct. You are much better off requesting an immediate right to sue letter (which can be obtain online at the DFEH site after filling out a simple questionnaire) and filing a civil complaint against the employer and/or individual harasser.

It is common for an employee who charges the public employer (government office) with discrimination and harassment claims to receive a response from the government attorney, claiming that the employee’s claims are rejected for non compliance with the Tort Claims Act. This legal argument, however, has no merit, when it comes to claims made under the Fair Employment and Housing Act (“FEHA”). It is well established that actions seeking redress for employment discrimination and harassment pursuant to the FEHA are not subject to the claim presentation requirements of the Tort Claims Act. Snipes v. City of Bakersfield 145 Cal.App.3d 861 (1983). A local government entity may not impose a claims requirement where, because of special procedural provisions of the FEHA, the California Tort Claims Act provisions do not apply. Pasadena Hotel Development Venture v. City of Pasadena 119 Cal.App.3d 412, 414-415 (1981). Thus, the compliance with the Tort Claims Act is not necessary in order to purse legal action under FEHA.

The California Fair Employment and Housing Act (“FEHA”) prohibits an employer from taking any adverse action (such as refusing to hire or employ, refusing to select for a training program leading to employment, demoting or discharging from employment or training program leading to employment, discrimination in compensation or terms or conditions of employment) based on his or her: race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (if 40 or over), or pregnancy, childbirth or related medical conditions of any female employee.

It is also unlawful for employer to act upon the perception that the aggrieved individual has one of the above protected characteristics, even if he or she does not. Thus, if an employee discriminated or harassed based on his perceived homosexuality, he is protected under FEHA and the employer will be likely liable for discrimination and harassment even if that employee is not gay.

There are numerous exemptions and exceptions that relieve California employers from the some legal duties with regards to providing their employee with rest and meal breaks. These exception usually apply to employees of such professions and in such environment where complying with the general rules would be unduly burdensome impracticable for the employer.

In the absence of an applicable exception, the following general rules apply to meal and rest breaks in California. An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of at least 30 minutes. However, if the total work day of the employee is sex hours or less, the meal period may be waived by mutual consent of both the employer and employee. It is very prudent for an employer to obtain such consent in writing in order to avoid subsequent claims for unpaid meal breaks, as the employer would normally have a burden of proving that he/she complied with the law.

Under California Labor Code 512, an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of at least 30 minutes. However, if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee, but only if the first meal period was not waived. Further, under labor code section 226.7(a), no employer shall require any employee to work during any meal or rest period.