The following are some of the most frequently asked questions that employees have when they believe they have been subjected to illegal employment practices. The answers provided are intended as general responses to these questions only. If you have questions relating to a specific matter, please contact us for a free consultation. Please also refer to the Employee Resources page and the Labor and Employment Law page for additional helpful information.
(Please click on each question for more information.)
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Generally, employment is considered terminable “at-will” in California, meaning your employer can fire you without good cause and for any reason, even if it is a very bad or unfair reason. There are limits to this general rule, however. California employers cannot fire employees for illegal or discriminatory reasons, such as in retaliation for complaining about illegal conduct in the workplace or for discriminatory reasons related to an employee’s age, disability, race, religion, color, national origin, genetic information, marital status, gender, gender identity, gender expression, sexual orientation, and military and veteran status.
There are also laws that prohibit employers from firing employees for making wage claims with the Labor Commissioner, taking time off for jury duty or to appear as a witness, and in certain other circumstances. Some negotiated employment contracts, such as collective bargaining agreements, also limit the circumstances in which an employee may be fired and require “just cause” or “good cause” for termination. Finally, in certain instances, an employer who verbally assures an employee of job security and promises to fire the employee only for good cause may be found to have created an implied contract which limits the employer’s ability to fire the employee.
It depends on the types of claims being made, and there is no one standard answer to this question. Moreover, claims asserting employment discrimination or harassment in violation of California state or federal statutes usually need to be brought before an administrative agency before they can be pursued in court, and the timing depends on the agency and type of claims being made. The following are some examples of timing requirements:
- Employment claims alleging violations of federal anti-discrimination and harassment statutes need to be brought before the Equal Employment Opportunity Commission (EEOC) within 180 days from the date the discrimination or harassment took place. If the matter is discharged from the EEOC and a “Notice of Right-to-Sue” in court is granted, you then typically have 90 days from the date of the Notice of Right-to-Sue to file a lawsuit in court.
- Claims alleging violations of California anti-discrimination and harassment statutes need to be brought before the Department of Fair Employment and Housing (DFEH) within one year from the date the discrimination or harassment took place. Usually you must file a lawsuit in court within one year of receiving a Notice of Right-to-Sue from the DFEH.
- Wrongful termination claims based on a violation of public policy need to be filed in court within two years from the date of termination.
- Claims of breach of a written employment contract must be filed in court within four years from the date of the breach.
- Claims for breach of implied employment contract must be filed in court within two years from the date of the breach.
It is very important that you consult with an attorney regarding your specific situation to ensure that your claims are made in a timely and correct way.
Just because you are still employed does not mean that you do not have a claim against your employer. There are many situations in which a current employee may have a legitimate claim against his or her employer. For example, you may experience a demotion or reduction in salary as a result of some illegal employment practice, you may be experiencing ongoing harassment in the workplace that makes working conditions intolerable, or you may not be receiving all the compensation you are entitled to as a result of wage and hour law violations.
Many current employees are afraid of complaining about illegal conduct in the workplace because they are afraid of losing their jobs if they complain. However, anti-retaliation laws prohibit employers from firing, discharging, or otherwise discriminating against an employee because the employee opposed an unlawful or discriminatory employment practice or filed a complaint, testified, or assisted in any proceeding involving an unlawful or discriminatory employment practice. Therefore, your employer is opening itself up to liability if it retaliates against you for complaining about illegal conduct. Claims for retaliation are not just limited to “ultimate” employer actions like hiring, firing, and demoting, but may be based on a broad range of employment actions that adversely and materially affect an employee’s job performance or opportunity for career advancement.
You should document any illegal conduct that you believe is occurring in the workplace. If you are planning to make a complaint to your employer directly, such as to the human resource department, then make the complaint in writing and be sure to save a copy. Take notes and keep records documenting the issues and conduct and the date/s it occurred. Also, be sure to save copies of any and all documents you receive from your employer related to the issues to help keep a record of what is occurring. For example, if you receive an email from your employer related to a complaint that you have made, make sure you save or print a copy. Even if a document seems trivial at the time, such as a simple email memorializing a meeting, it may prove important later on if a case is filed, so be very diligent about saving any and all documents that may relate to the illegal conduct.
If you are a current employee and believe that you are being subjected to illegal employment practices, you should consult with an attorney and may also consider filing a complaint with a state agency, such as the Equal Employment Opportunity Commission (EEOC), Department of Fair Employment and Housing (DFEH), or the Division of Labor Standards Enforcement (DLSE) (see the Employee Resources page for links to the websites of these agencies).
What types of records or documents do I have right to obtain from my employer in California?
You have a right to request copies of certain employment records from your employer at any time during your employment or after you are terminated or quit. Pursuant to California Labor Code sections 1198.5, 226, and 432, any current or former employee has a right to inspect or copy any personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee, wage and payroll records, and any document the employee signed related to his or her employment.
Upon reasonable request, an employer must permit the inspection or copying of personnel records within 30 days and payroll records within 21 days. Failure to comply with an employee’s request to inspect or copy their personnel and payroll records within the statutory time limits may subject an employer to statutory penalties.
If a lawsuit is filed on your behalf, additional documents will also be obtained from your employer through the course of discovery, such as internal communications, emails, and other types of documents.
Employers are generally under no legal obligation to offer employees severance pay upon termination of employment (unless there was some prior promise to do so such as through a written employment contract or policy). However, it is not uncommon for an employer to offer an employee being terminated severance pay in exchange for the employee’s agreement to sign a severance agreement, especially when the employer has reason to believe there may be a potential dispute. Severance agreements contain numerous terms and conditions, but at the heart of the agreement is the employee’s release of any and all claims he or she may have against the employer in exchange for the payment of money, which is generally equivalent to a certain duration of salary.
Whether or not you sign the severance agreement is entirely up to you, but it is recommended that you seek the advice of an attorney before signing a severance agreement if you believe you may have a claim against your employer. It may be tempting to accept the money being offered quickly and without hassle, particularly when facing the prospect of unemployment and a loss of income. However, if you believe you have been wrongfully terminated or subjected to other illegal employment practices, you should carefully consider whether the sum being offered adequately covers the harm you have experienced as a result of your employer’s conduct. An attorney can help you evaluate the potential claims and damages that you may be releasing by signing the severance agreement, and assist you in reaching an informed decision as to whether you should sign the agreement.
What types of potential damages can I recover if I sue my employer?
There are numerous types of damages that may potentially be awarded in employment cases, depending on the types of claims being asserted and what is established at trial. These include the following:
- Special damages (also known as monetary or economic damages) are verifiable monetary losses that the employee suffers and include awards of back pay (such as lost wages and salary, lost benefits, and pre-judgment interest) and front pay, which compensates an employee for the future effects of discrimination.
- General damage awards are for non-monetary harm suffered by an employee, and may include compensation for such things as emotional pain, suffering, mental anguish, loss of enjoyment of life, and harm to reputation.
- Punitive damages may be awarded as a form of punishment to an employer when the employer’s conduct is particularly reprehensible.
- Under various statutes, a prevailing plaintiff in an employment case may be entitled to an award of attorney’s fees.
- Injunctive and affirmative relief may be awarded in employment cases and may include such things as ordering reinstatement, reasonable accommodation, salary adjustment, or retroactive seniority.
It is important to note that no attorney can or should promise you that your case is worth a certain amount of money. Lawsuits are unpredictable and there are far too many variables involved to guarantee a particular result.
How do I begin the process of pursuing a claim against my employer?
It is recommended that you consult with an attorney as soon as you believe you have been wrongfully terminated or subjected to illegal employment practices. An attorney can help you assess and identify your potential claims, advise you on how long you have to pursue your claims, and tell you what procedures need to be followed in order to pursue your claims.
Employees may pursue certain claims through various state and federal agencies such as the Equal Employment Opportunity Commission (EEOC), the California Department of Fair Employment and Housing (DFEH), the California Labor Commissioner’s Office – Division of Labor Standard’s Enforcement (DLSE), and the U.S. Department of Labor’s Wage and Hour Division (WHD). (For more information on these agencies, please visit the Employee Resources page.) However, there are various timing and procedural requirements for pursuing claims through these agencies and, depending on the types of claims you are asserting, you may be required to bring your claims before a government agency before the claims can be pursued in court. An attorney can help advise you on the appropriate process required in your particular situation.
What if I cannot afford to pay an attorney to represent me in my wrongful termination case?
Most attorneys who represent employees in employment dispute cases work on a contingency basis, which means that the attorney only gets paid for his or her time if there is a recovery on your behalf. The attorney’s fee is paid as a percentage of any recovery in the case, and the percentage charged varies from attorney to attorney. In practical terms, this means that you can usually obtain representation without paying any attorney’s fees up front, and will not need to pay any attorney’s fees at all if there is no recovery on your behalf. While some people choose to go it alone and represent themselves in court against their employers, it is not advisable and puts you at a substantial disadvantage.
Although it depends on the types of claims involved, employment cases generally go through an “administrative exhaustion” process before they proceed to court, meaning the claims are first brought before a governmental administrative agency. If you have an attorney, he or she will prepare and submit the administrative complaint on your behalf and in many cases you will receive a “Notice of Right-to-Sue” from the agency which permits you to pursue your claims in court. Assuming there is not an arbitration agreement in place (see below for more information on arbitration), the case will usually proceed to court after the administrative process has been completed.
A court case or lawsuit is initiated by filing and serving a complaint in court, which contains the factual and legal allegations of the plaintiff-employee. The defendant-employer will then have an opportunity to respond to the allegations of the complaint in writing. This early part of the case is known as the “pleadings” phase.
The pleadings phase is followed by a process known as “discovery,” which typically takes up the bulk of the total time of a case and can take anywhere from several months to over one year to complete. Discovery involves the exchange of information and documents between the parties to the lawsuit, and often also involves obtaining information and documents from third parties (such as witnesses). Your attorney will walk you through the discovery process as it unfolds and will gather and present most of the information on your behalf.
The exchange of information through discovery includes things like obtaining records and communications and answering questions in both written and verbal formats. Your attorney will handle the gathering of information from the other side, and will help you respond to the requests from the opposing party. For example, when answering written questions, your attorney will prepare responses on your behalf and ask you to verify that the responses are accurate. You will also likely have your deposition taken during the course of discovery, which involves answering questions verbally under oath before a court reporter in response to questions asked by the attorney for the opposing party. Depositions typically take place at an attorney’s office and, assuming you are represented, your attorney will be present with you to ensure that the process is fair and that your rights are protected. The discovery phase of a case lasts until shortly before trial.
Finally, a trial represents the chance to use the information gathered through discovery, and present your case in order to obtain a judgment against the defendant. You will need to be present in court during the trial and will likely need to testify under oath concerning the events and circumstances surrounding your claims. Trials vary in duration, but typically last about seven days. There may also be an appeals process if one of the parties chooses to dispute the result of the trial on legal grounds.
There is not a simple answer to this question, and it really depends on the facts and circumstances of your case and the parties involved. As a general rule, however, it is unwise to believe that faster results equal better results. Legal disputes take time to unfold and can last anywhere from several months to a few years. Some parties choose to resolve disputes informally without the need for a lawsuit, particularly when they have a similar view of the issues in a case. However, others prefer to fight it out in court regardless of the issues.
From a statistical viewpoint, the vast majority of cases settle and resolve prior to going to trial. However, if you choose to pursue a lawsuit against your employer, you should be prepared for the case to go the duration through trial and even potentially through an appeals process if necessary.
What is mediation and arbitration and how are they different?
Mediation is a purely voluntary and informal settlement negotiation process and can take place at any time during the course of a case (regardless of whether a lawsuit has been filed or whether the case is in court or arbitration). The mediator is mutually agreed upon by the parties and is typically an attorney or former judge with substantial experience in the area of law at issue.
Mediation is “non-binding” meaning there is no ultimate decision being made or rendered by the mediator. The mediator is there to simply facilitate settlement negotiations between the parties. If no settlement is reached during the course of mediation, then nothing changes in the case. Good mediators know the law, are fluent with the facts of the case, and can help the parties better see the strengths and weaknesses of their sides in trying to come to a resolution.
Arbitration, on the other hand, is a method of resolving cases through a formal hearing process that takes place outside of the court system where an ultimate decision is rendered by an arbitrator/s. Arbitration typically results when an employee has signed an arbitration agreement with his or her employer, often at the beginning of employment, agreeing to have their claims heard in the arbitration forum instead of a court of law. Arbitration agreements are fairly common in the employment context and are usually enforceable in California, although not always so depending on the language of the agreement and circumstances surrounding its execution.
Arbitration operates in a somewhat similar fashion to court in that the parties have an opportunity to assert their positions, argue points of law, gather and exchange evidence through discovery, and ultimately present the case for judgment. However, one big difference between arbitration and a court case is that a jury is not available in arbitration cases.
Free initial consultation. No attorney’s fees if no recovery.
Galante Law, Inc. offers employees a free initial consultation on labor and employment matters. Galante Law, Inc. represents employees on a contingency fee basis and does not take any attorney’s fees unless and until a settlement award or judgment is received. If there is no recovery or settlement the client is liable for costs only. Please contact us online or by telephone at 213-785-1900 to arrange a free consultation.