We often speak with both employees and employers who have the same misconceptions about California employment law, which are important to be aware of in order to easily avoid unnecessary and often expensive mistakes:  
1. "We Don't Have to Give a Reason for Firing an At-Will Employee." California is an at-will employment state. Generally speaking, an employer may terminate an employee at any time, with or without notice, and with or without stating a reason. Many employers incorrectly conclude that because they are not legally required to provide a reason for termination, they should never give a reason. 

However, when an employer refuses to explain why someone was fired, this may raise a suspision that the employer is trynig to hide a potentially unlawful reason. Otherwise, why couldn't the employer just cite the typical performance, attitude, etc... If that employee files a wrongful termination case,  the absence of any explanation invites looking into whether unlawful discrimination or retaliation played a role. 
Providing a truthful and well-documented reason for a termination can sometimes reduce suspicion and strengthen the employer's defense.

Real-Life Example: An employee with excellent performance reviews is terminated immediately after requesting a disability accommodation. The employer simply says, "California is an at-will state. We don't have to explain why." During litigation, internal emails reveal managers discussing frustration with the employee's medical restrictions. The employer's refusal to give any explanation for the final decision to fire becomes one of several facts suggesting that the reliance on "at-will employment" was being used to hide an unlawful motive.

2. Not Every Form of Retaliation Is Illegal.  In fact, most types of retaliation California law only prohibits retaliation for engaging in legally protected activity. Protected activities include the following: 

• Reporting discrimination or harassment.
• Complaining about wage and hour violations.
• Reporting workplace safety violations.
• Requesting a reasonable accommodation.
• Taking protected medical or family leave.
• Reporting conduct the employee reasonably believes violates the law.

However, if an employee complains about something that is not legally protected, retaliation may be unfair, but it is not unlawful.

Real-Life Example: Employee A complains that the office coffee is terrible and management wastes money on unnecessary renovations.
Employee B complains that female employees are being paid less than male employees performing substantially similar work.
If both employees are later disciplined, Employee B may have a retaliation claim because the complaint involved alleged unlawful discrimination. Employee A generally would not, because complaining about coffee or management's business decisions is not protected activity, so even if Employee A was clearly terminated for making those complaints, this would not form a basis for a wrongful termination case. 
The key question is not whether the employer retaliated—it is whether the retaliation was because the employee engaged in activity protected by law.

3. A Hostile Work Environment Must Be Based on a Protected Class. People often use the phrase "hostile work environment" to describe an unpleasant workplace. Legally, however, a hostile work environment has a much narrower meaning. An abusive supervisor, rude coworkers, favoritism, yelling, or personality conflicts generally do not violate California's anti-discrimination laws unless the hostility is motivated by a protected characteristic such as:

• Race
• Sex
• Disability
• Age
• Religion
• National origin
• Sexual orientation
• Gender identity
• Another characteristic protected by law

The law does not require employers to provide a pleasant workplace. It only prohibits discrimination. Thus, a manager who constantly screams at everyone, insults employees, and creates a toxic workplace regardless of gender, race, age, or disability doesn't create an environment that would be considered "hostle" under the law. 
Now imagine the same manager repeatedly mocks an employee's accent, makes derogatory comments about her religion, or ridicules her disability. Those facts may support a hostile work environment claim because the hostility is tied to a protected characteristic.

4. Wrongful Termination Requires Evidence of an Illegal Reason—Not Simply an Unfair One. Many employees understandably believe they were fired unfairly. However, California law generally does not prohibit employers from making poor business decisions, firing good employees, or terminating someone based on inaccurate information. Instead, a wrongful termination claim typically requires evidence that the termination violated a law or public policy.
Examples include termination because of:

• Race or other protected characteristic.
• Disability.
• Taking protected medical leave.
• Reporting illegal conduct.
• Serving on a jury.
• Refusing to participate in illegal activity.
• Exercising another legal right.

Real-Life Example: A company mistakenly believes an employee made a costly accounting error and terminates him. A month later, the company discovers another employee was actually responsible. The termination may have been completely unfair, but unless the decision was motivated by an unlawful reason, the employee may not have a wrongful termination claim.
By contrast, if the employee was fired because he complained about not being paid his overtime due, that same termination may violate California's retaliation laws.
The difference is not whether the employer was wrong—it is whether the employer violated the law.

5. Taking Protected Leave Does Not Make an Employee Immune From Termination. Many employees believe that once they take protected medical or family leave, they cannot legally be fired. That is another common misconception. Protected leave does not provide permanent job immunity.
Instead, it generally means that it would be unlawful for an employer to  terminate an employee because that employee exercised a protected legal right (but the employer can still choose to do so). 
If the employer can prove the employee would have been terminated regardless of the leave—for example, because of a company-wide layoff, documented misconduct discovered before the leave, or elimination of the position—the termination may still be lawful.

Real-Life Example: An employee takes approved CFRA leave for surgery.
While the employee is away, the employer eliminates an entire department as part of a company-wide reduction in force affecting dozens of employees.
The fact that the employee was on protected leave does not automatically make the termination unlawful.

Now consider a different scenario. A supervisor complains that an employee's medical leave is "too inconvenient" and terminates the employee immediately after the leave begins, even though no layoffs or performance issues exist. Those facts may support a claim that the termination was motivated by the employee's protected leave.
The legal issue is not whether the employee was on leave. The issue is whether the leave motivated the employer's decision or whether it was at least one of the motivating reasons for termination. 

A recent California appellate decision serves as an important reminder that an arbitration agreement that is drafted too broadly may not simply be narrowed by a court—it may be found entirely unenforceable, redirecting that dispute to court. In Phan v. Knight Sacramento SU, Inc., the California Court of Appeal for the Third Appellate District examined an arbitration agreement that extended far beyond ordinary employment-related disputes. The agreement purported to require arbitration not only of employment claims, but essentially any claims whatsoever between the employee and employer arising from events occurring before, during, or after the employee's employment. The court concluded that this sweeping language was substantively unconscionable because it reached disputes having little or no connection to the employment relationship. 

Many employers understandably want the broadest protection possible in their arbitration agreements. However,  an arbitration agreement that attempts to cover every conceivable dispute can have the opposite effect as the above case shows.  Problematic language often includes provisions stating that arbitration applies to:

• Any claims whatsoever between the employee and employer;
• Claims arising before employment begins;
• Claims arising after employment ends;
• Disputes unrelated to the employment relationship; or
• Any dispute of any kind between the parties regardless of its connection to employment.

California courts carefully scrutinize arbitration agreements for unconscionability. When an agreement reaches far beyond legitimate employment disputes, a court may conclude that it unfairly favors the employer or exceeds what employees could reasonably expect when accepting employment.

Employers should periodically review their arbitration agreements to ensure they comply with current California law. Because arbitration law continues to evolve, agreements that were drafted years ago may no longer withstand judicial scrutiny. A carefully drafted arbitration agreement can provide significant benefits. An overreaching one, however, may provide none at all.

Employers often walk a fine line when conducting workplace investigations—especially when those investigations are directed by an attorney. On the one hand, involving attorneys can strengthen the integrity of the process, especially if an outside counsel is hired by the company to conduct that investigation. On the other, it creates a latent risk: waiver of attorney-client privilege and work product protection if the employer later relies on the investigation as part of its defense to either justify the termination or demonstrate that they met their obligation of investigation the allegations made. 
That risk becomes very real in litigation involving claims of discrimination, retaliation, failure to investigate, or wrongful termination.
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The governing principle is this: an employer can't refer to the investigation as a defense in litigation and at the same time refuse to disclose the written materials relevant to that investigation.  The leading case on this issue is is Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128. There, the court held that when an employer affirmatively relies on an attorney-conducted investigation to defend its actions, it places the contents of that investigation “at issue,” thereby waiving privilege.
In practical terms, once an employer argues:

• “We conducted a thorough investigation,”
• “We relied on counsel’s findings,” or
• “We acted in good faith based on the investigation,”

…this opens the door to discovery of what would otherwise be a protected material not available to the plaintiff.  
As a result, the plaintiff may gain access to wintess statements, interview notes, draft reports, attorney impressions, and final investigation reports. This can fundamentally shift the leverage in a case, especially if any of these documents contain any "juicy" evidence showing that the employer had unlawful reasons for terminating you.  This damning evidence can include the following: flaws in the investigation, biased questioning, failure to interview key witnesses, pre-determined conclusions, and inconsistent documentation.

These types of issues with the investigation process can, along with other evidence, support or strengthen a potenital or existing case against that employer. Employer should keep this in mind when deciding to conduct an investigation and at a minimum ask themselves: what will be the exact purpose of this investigation? How likely is the company to use this investigation and its conclusion to defend any potential legal action by an employee? And, does the company feel comfortable disclosing all of these investiation materials if need be under the circumstances? 

Under Title VII, a union may be liable in several ways for workplace discrimination and harassment. First, a union may be liable for intentionanlly failing to file grievances concerinng a racially hostile working environment of any of its members. Goodman  v Lukens Steeol Co., 482 US 656, 667 (1987). This inquiry does not require proving that the workplace was hostile. In Goodman, the union had for several years been a party to a union contract with a provision expressly prohibiting discrimination. The union was aware of, but nevertheless ignored grievances based on racial harassment and other forms of discrimination. The Supreme Court held that a union's deliberate failure to bring race-based claims, by itself constituted discrimination, violating the plain terms of Title VII.   

A union may also be liable under Title VII for acquiescing in a racially discriminatory work environment, i.e. being aware of discriminatory or harassing conduct taking place and doing little to nothing to remedy or prevent it. The union has an affirmative obligation to oppose employment discrimination against its members. Bonilla v Oakland Scavenger Co. 697 F.2d 1297, 1304 (9th Cir. 1982). The same reasons which prohibit an employer from discriminating on the basis of race... apply equally to the union. McDonald v Santa Fe Transp. Co., 427 U.S. 273, 285 (1976).    

In light of the above, it's well worth exploring, when filing a lawsuit against an employer for discrimination and wrongful termination whether there is sufficient evidence to include the claimant's union in the complaint as a defendant. Woods v Graphic Communications 925 F.2d 1195 (9th Cir. 1991) is another important case whic includes relevant discussion and analysis for union liabiltiy for discrimination in various circuits. 

There is one specific thing you can do to help your attorney get the best results in your discrimination, harassment or wrongful termination case:   

 - pretend to be your employer's attorney for a moment and ask yourself how you would defend the case against you - 

This means that you should first share with your attorney not only the facts that support your case but also circumstances that might make it more challenging as early as your initial consult to evaluate your case.  This will help your attorney  determine whether your case is worth pursuing, and if so - prepare to defend your case against any arguments made by the employer's attorneys using those negative facts.

Think of any skeleton in your closet your employer knows about or can discover to use against you during your testiomny. This can include your previous arrest history with or without conviction, drug use, problems  with or claims against your previous employers, rude or inappropriate emails or text messages you may have sent in the past to your co-workers or management, less than flattering social media activity, and any other information that would put you in less than positive light. Prepare to deal with these facts, if the employer's attorneys try to use them against you

When you prepare for your deposition, make a list of questions that you believe you would be most uncomfortable answering, and discuss with your lawer how you should best answer those questions. If you are ready for the most difficult questions during your deposition testimony, the rest should be much easier. 

Below are three simple but practical tips on how to make the process of initiating a wrongful termination case less stressful, after you have been fired: 

1. Put Your Situation In Perspective. Realize that the worst thing in this process has already happened to you - you have been terminated. The employer can't really take away anything more from you than they already have - your job and your income. 
2. Keep in mind that your case is a civil case (as opposed to criminal). No matter what happen in your case - neither you nor your former managers will go to jail, and your case will generally revolve around whether or not it can be settled or whether it will go to trial or arbitration.  Some cases are dismissed by court due to lack of evidence, and that's an inherent risk of employment litigation. Your attorney should evaluate your case in great detail before deciding to pursue it in order to minimize the risk of your case being dismissed.

3. Work with the right lawyer.  Work with a lawyer who you are comfortable with, i.e. somehow who strikes you as knowledgeable, personable, responsive, and who you can ask to explain not only what your course of action in your case will be but also why. Often that will not be the same lawyer who has the sharpest website or the largest billboard on a highway, or someone who is too sure of himself. Be sure to share with your lawyer your biggest concerns about your potential case, so that he can address them and help you make the right decision and what your next steps should be. 

Under California law, an employer has an obligation to conduct a prompt, thorough and fair investigation of any complaint of unlawful harassment or discrimination at workplace, and take proper remedial action to stop harassment and/or prevent it from occurring in the future. This doesn’t mean that the employer automatically has to fire the accused, but if violation is found, they have to take some disciplinary action that they reasonably believe would be effective to discourage or prevent such future violations.   

Conducting proper investigation is important not only to the parties involved in that conflict so that their issue is resolved, but also to the employer.  This is because if the investigation is not conducted correctly, the alleged victim of harassment can use the substandard quality of the investigation in his claims against the employer, showing that the employer is that bad guy because they didn't care to do the investigation correctly, when they could and should have.  

Here are two board and critically important principals of every proper workplace investigation:

1. The investigation has to be impartial or as impartial as possible. This means that ideally, the investigator must not be an internal employee, but someone who is hired from the outside. There are plenty of companies out there who offer quality workplace investigators, who can come in and do a good job interviewing all the parties involved and witnesses, and issuing reasonable findings for you, the employer, to work with.  Ideally, an employer should be hinting to the investigator at the findings they would like to see and let the investigator do their job completely independently. 

2. All relevant witnesses should be interviewed.  There are almost always two sides to every story. To get the most complete picture of the situation and the most reliable findings, the investigator should talk to every witness of the relevant events on both sides - the alleged victim and the accused. An employer should not be preventing the investigator from doing as good and as complete of a job as they would like to, if they want to get to the bottom of what happened in any given dispute.     

Sticking to the above basic principles alone should help any employer make sure that their investigation is conducted correctly, and it will not backfire or any of the parties involved initiates litigation. 

One of the actions that employers sometimes take, that potentially can be a serious violation of California and Federal disabilities laws, is cancelling a disabled worker's existing accommodation that has been in place for some time and allowed that employee to perform his job well. This tends to happen more often when a new manager comes on board, who is eager to make significant changes in the office, some of which could be good while others - not so good.  

Whether an employer's revokation of an existing accommodation is lawful depends on a number of factors, including the specific reasons behind that action, whether alternative, effective accommodations are available and are actually offered to the employee in question and whether there is some change in the employer's operation or the employee's medical status that would justify this change. Each situation must be evaluated individually in light of its unique circumstances to determine whether (a) a compromise between the employer's new goals and the employee's needs can be reach, and if not (b) whether there is sufficient evidence to puruse a disability discrimination case against that employer. 

In these types of situations both sides should consider avoiding impulsive decisions as such termination of that employee or quitting the job by that employee. Instead, the parties should first explore the issue and see if they can reach some kind of compromise that works for both the employee who needs and accommodating and that employer. 

Despite the fact that there has been no legal requirement for any employers in California to impose Covid-19 vaccine mandates on their workers, many employers choose to continue demanding that their employees are fully vaccinated.  It is most surprising that even fully remote employees are expected to be vaccinated by many private and public employers, and these same workers are routinely denied requests for a religious exemption from this requirement. It is hard to imagine how an employer could justify insisting on compliance with their vaccination rules with respect to those workers, who never come in contact with their co-workers or company clients / customers.   

We have already filed several lawsuits to challenge this highly unethical practice that leads to good workers losing their jobs and having their careers and livelihood derailed for no good reason , and this lawsuit against the City and County of San Francisco being one of the more recent ones.  We look forward to seeing how these cases turn out in court.