Frequently Asked Questions Regarding California Employment Law
1. What does "Employment at Will" mean?
Employment-at-will means that an employee can leave his/her job or be terminated from the same job for any reason, no reason or arbitrary reason except that the employee cannot be terminated for an illegal reason, such as discrimination or retaliation. There is a basic presumption in California that in the absence of a contract or some kind of agreement to be employed for a specified period of time or not be terminated unless there is (just) cause (such as in the case of workers who are union members, permanent civil service employees, public school teacher and other tenured teachers and professors, and certain groups of licensed professionals such as hospital physicans, who have staffing privileges), all other employees are considered to be employed "at will."
2. How much is my wrongful termination case worth?
There is simply no precise answer to this question for several reasons. First, no attorney can or should guarantee an outcome of any claim due to the inherently unpredictable nature of most employment related cases. Some of the factors that affect the outcome of the case and the potential size of the settlement / verdict are: your rate of compensation while working for the employer sued; how many years you worked for the employer-defendant; your age - older people tend to be more sympathetic in front of the jury, although this is not always the case; your personality - the court/jury tends to be more generous to those claimants who are likable and charismatic; the specific facts of your case and the egregiousness of the employer's conduct against you; availability of witnesses to prove your allegations, such as your former co-workers,; the extent of your emotional distress as documented in medical records and can be evidence from your life's circumstances, the amount of time you have been unemployed as a result of wrongful termination, the size of the employer and their philosophy on fighting employee claims vs settling them sooner rather than later; and your lawyer's approach to your case - when the other side sees that your lawyers knows what he is doing, and he is not an novice in the employment law arena, they will take your case more seriously and are likely to be more forthcoming during settlement negotiations.
3. What does "workplace harassment" or "hostile work environment" really mean?
I believe that the above concepts are some of the most misunderstood legal terms by the common public. Most people believe that just because their manager or a supervisor is not nice to them, or is being rude, unfair, abrupt or overly critical in evaluating their performance, he is being "hostile." This is not the case however. Under the law, hostile work environment or harassment claim arises when the employment conditions of the victim are so objectively intolerablethat they would actually alter the working conditions to cause a reasonable person in the victim's place to quit. This means that typical, common job related conflicts or stress are clearly not enough to assert a hostile environment claim, and generally, such claims arise when someone is mistreated for discriminatory reason. For example, if a manger repeatedly calls his female subordinate a bitch, this alone will likely not give rise to a hostile work environment claim, as this is merely an insult that has no inherent discriminatory animus (although one could argue somewhat subjectively that the term "bitch" suggest hostility toward women). On the other hand, if the same manager makes degrading ageist comments to an older workers, such as "old fart," "it's time to retire," "we need fresh blood," etc... this would likely give rise to a harassment and discrimination claim, similarly to a situation where a disabled worker is being degraded verbally with negative references to his disability.
4. How long will it take for my discrimination / wrongful termination case to resolve?
I have had cases resolve after writing one letter to an employer, which explained why the termination was unlawful, and in which case the employer agreed that their conduct was illegal and they were eager to settle case and avoid litigation. In the vast majority of cases, however, the employers deny liability, as there are so many ways to put a different spin on the facts of what seems to be an illegal termination, and it can take anywhere between 3 months to 1.5 half to work up the case and bring the case to a resolution through or before trial.
5. I filed a union grievance against my employer. Should / can I still pursue a lawsuit in court?
It is important to understand that filing a grievance is different from filing a lawsuit in court in several important regards. First, grievances arise out of employer's violation of the Collective Bargaining Agreement between the union and the employer and not out of legal violation. For example, an employee who was terminated because of filing for workers compensation benefits or using disability leave may file a grievance for not being terminated for just cause, and at the same time file a lawsuit in court for disability discrimination and workplace retaliation for asserting workers compensation rights. Filing a grievance does not have any bearing on the employee's rights in court. Winning or losing a grievance also does not have a whole lot of bearing on the aggrieved employee's civil case, although the outcome of one can be relevant to proving or disproving the other. For instance, if you lose a discrimination case in court, the employer will use that fact at the arbitration, arguing that you were not discriminated and that your alleged violation or misconduct was the true reason for termination. Often, filing both the grievance and the lawsuit in court has a number of strategic advantages: (a) the employer will experience more financial pressure of having to defend both the union and the grievance and is likely to agree to a global settlement more than to just a settlement of either the grievance or a civil lawsuit; (b) if you are ready and willing to return to you workplace, union action is the only way that your employer might be able to be ordered to reinstate you; (c) unions are notoriously slow in pursuing grievances due to being understaffed, having too many claims and due to different political issues. Having a parallel court action at the same time provides you with additional and often faster and more aggressive way of recovering compensation for violation of your rights.
6. Will the settlement of my wrongful termination case be taxable?
Yes, generally - settlements of employment related claims are considered taxable income and they are taxed at a regular rate as your wages would be taxed and are subject to the same common deductions as any other income. Of course, if your settlement check includes attorneys fees, you will not be taxed on attorney's share of proceeds.
7. What is PMQ Deposition?
PMQ stands for "Person Most Qualified" under California Code of Civil Procedure 2025.230. Since corporations are not actual living beings, they can't speak for themselves, so they have to desgination a person or several persons to testify on their behalf. By law, when Plaintiff in an employment cases, business dispute or any other case against a corporation intends to depose the corporate, he has to provide the categories of questions that he intends to ask with reasonable particularity. In response, the corporation must designation those individuals who are most qualified to testify on the categories of questions provided. The corporation is the one who decides who to designate. They can designate one person to testify on all the categories or as many persons as they wish. The testimony of the person designated as PMQ will be binding on the corporation. In other words, if the PMQ answers "I don't know" it means that the corporation doesn't know. Sometimes, this can be advantageous to the Plaintiff. For instance, if the Plaintiff asks: "Do you have any written policies on preventing discrimination at workplace?" and the PMQ answers "I don't know", this obviously doesn't make the employer look good.
8. What should I do if I did not receive my last paycheck when I resigned or when I was terminated?
Theoretically, the best option, is bringing a claim with DLSE (Labor Commissioner) for unpaid wages. However, because disputes over the last paycheck are usually over a small amount, it is highly recommended to try to resolve the issue informally with your employer before filing a wage claim, as that would be a much easier and faster way to address the issue. Sometimes, an employer misplaces the check or mails the last check to the employee to the wrong address, and sometimes an employee doesn't get his last paycheck for other logistical or administrative reasons that has nothing to do with the employer's unwillingness to pay. If the issue is that the employer didn't provide your last paycheck in the timely manner, as required by law, but eventually did pay you, that's a nominal violation which alone isn't worth the trouble of fighting over.
Employment-at-will means that an employee can leave his/her job or be terminated from the same job for any reason, no reason or arbitrary reason except that the employee cannot be terminated for an illegal reason, such as discrimination or retaliation. There is a basic presumption in California that in the absence of a contract or some kind of agreement to be employed for a specified period of time or not be terminated unless there is (just) cause (such as in the case of workers who are union members, permanent civil service employees, public school teacher and other tenured teachers and professors, and certain groups of licensed professionals such as hospital physicans, who have staffing privileges), all other employees are considered to be employed "at will."
2. How much is my wrongful termination case worth?
There is simply no precise answer to this question for several reasons. First, no attorney can or should guarantee an outcome of any claim due to the inherently unpredictable nature of most employment related cases. Some of the factors that affect the outcome of the case and the potential size of the settlement / verdict are: your rate of compensation while working for the employer sued; how many years you worked for the employer-defendant; your age - older people tend to be more sympathetic in front of the jury, although this is not always the case; your personality - the court/jury tends to be more generous to those claimants who are likable and charismatic; the specific facts of your case and the egregiousness of the employer's conduct against you; availability of witnesses to prove your allegations, such as your former co-workers,; the extent of your emotional distress as documented in medical records and can be evidence from your life's circumstances, the amount of time you have been unemployed as a result of wrongful termination, the size of the employer and their philosophy on fighting employee claims vs settling them sooner rather than later; and your lawyer's approach to your case - when the other side sees that your lawyers knows what he is doing, and he is not an novice in the employment law arena, they will take your case more seriously and are likely to be more forthcoming during settlement negotiations.
3. What does "workplace harassment" or "hostile work environment" really mean?
I believe that the above concepts are some of the most misunderstood legal terms by the common public. Most people believe that just because their manager or a supervisor is not nice to them, or is being rude, unfair, abrupt or overly critical in evaluating their performance, he is being "hostile." This is not the case however. Under the law, hostile work environment or harassment claim arises when the employment conditions of the victim are so objectively intolerablethat they would actually alter the working conditions to cause a reasonable person in the victim's place to quit. This means that typical, common job related conflicts or stress are clearly not enough to assert a hostile environment claim, and generally, such claims arise when someone is mistreated for discriminatory reason. For example, if a manger repeatedly calls his female subordinate a bitch, this alone will likely not give rise to a hostile work environment claim, as this is merely an insult that has no inherent discriminatory animus (although one could argue somewhat subjectively that the term "bitch" suggest hostility toward women). On the other hand, if the same manager makes degrading ageist comments to an older workers, such as "old fart," "it's time to retire," "we need fresh blood," etc... this would likely give rise to a harassment and discrimination claim, similarly to a situation where a disabled worker is being degraded verbally with negative references to his disability.
4. How long will it take for my discrimination / wrongful termination case to resolve?
I have had cases resolve after writing one letter to an employer, which explained why the termination was unlawful, and in which case the employer agreed that their conduct was illegal and they were eager to settle case and avoid litigation. In the vast majority of cases, however, the employers deny liability, as there are so many ways to put a different spin on the facts of what seems to be an illegal termination, and it can take anywhere between 3 months to 1.5 half to work up the case and bring the case to a resolution through or before trial.
5. I filed a union grievance against my employer. Should / can I still pursue a lawsuit in court?
It is important to understand that filing a grievance is different from filing a lawsuit in court in several important regards. First, grievances arise out of employer's violation of the Collective Bargaining Agreement between the union and the employer and not out of legal violation. For example, an employee who was terminated because of filing for workers compensation benefits or using disability leave may file a grievance for not being terminated for just cause, and at the same time file a lawsuit in court for disability discrimination and workplace retaliation for asserting workers compensation rights. Filing a grievance does not have any bearing on the employee's rights in court. Winning or losing a grievance also does not have a whole lot of bearing on the aggrieved employee's civil case, although the outcome of one can be relevant to proving or disproving the other. For instance, if you lose a discrimination case in court, the employer will use that fact at the arbitration, arguing that you were not discriminated and that your alleged violation or misconduct was the true reason for termination. Often, filing both the grievance and the lawsuit in court has a number of strategic advantages: (a) the employer will experience more financial pressure of having to defend both the union and the grievance and is likely to agree to a global settlement more than to just a settlement of either the grievance or a civil lawsuit; (b) if you are ready and willing to return to you workplace, union action is the only way that your employer might be able to be ordered to reinstate you; (c) unions are notoriously slow in pursuing grievances due to being understaffed, having too many claims and due to different political issues. Having a parallel court action at the same time provides you with additional and often faster and more aggressive way of recovering compensation for violation of your rights.
6. Will the settlement of my wrongful termination case be taxable?
Yes, generally - settlements of employment related claims are considered taxable income and they are taxed at a regular rate as your wages would be taxed and are subject to the same common deductions as any other income. Of course, if your settlement check includes attorneys fees, you will not be taxed on attorney's share of proceeds.
7. What is PMQ Deposition?
PMQ stands for "Person Most Qualified" under California Code of Civil Procedure 2025.230. Since corporations are not actual living beings, they can't speak for themselves, so they have to desgination a person or several persons to testify on their behalf. By law, when Plaintiff in an employment cases, business dispute or any other case against a corporation intends to depose the corporate, he has to provide the categories of questions that he intends to ask with reasonable particularity. In response, the corporation must designation those individuals who are most qualified to testify on the categories of questions provided. The corporation is the one who decides who to designate. They can designate one person to testify on all the categories or as many persons as they wish. The testimony of the person designated as PMQ will be binding on the corporation. In other words, if the PMQ answers "I don't know" it means that the corporation doesn't know. Sometimes, this can be advantageous to the Plaintiff. For instance, if the Plaintiff asks: "Do you have any written policies on preventing discrimination at workplace?" and the PMQ answers "I don't know", this obviously doesn't make the employer look good.
8. What should I do if I did not receive my last paycheck when I resigned or when I was terminated?
Theoretically, the best option, is bringing a claim with DLSE (Labor Commissioner) for unpaid wages. However, because disputes over the last paycheck are usually over a small amount, it is highly recommended to try to resolve the issue informally with your employer before filing a wage claim, as that would be a much easier and faster way to address the issue. Sometimes, an employer misplaces the check or mails the last check to the employee to the wrong address, and sometimes an employee doesn't get his last paycheck for other logistical or administrative reasons that has nothing to do with the employer's unwillingness to pay. If the issue is that the employer didn't provide your last paycheck in the timely manner, as required by law, but eventually did pay you, that's a nominal violation which alone isn't worth the trouble of fighting over.
