Employees often focus on whether what happened to them was illegal. That is obviously important. But when an employment attorney evaluates a potential harassment, discrimination, or retaliation case, there is another question that can be just as important: Can we prove what happened?
Many employment cases necessarily involve disputed testimony, often referred to as "he said - she said" situation. But the presence of a credible witness -particularly an independent witness who has no apparent reason to favor the employee - can substantially change the strength of a case. 

Here is a very realistic example. An employee tells her supervisor that she needs intermittent time away from work because of a medical condition. According to the employee, the supervisor responds: "I need people I can count on. If your medical problems are going to interfere with your work, maybe this isn't the right job for you." Two weeks later, the employee is terminated.

The supervisor denies ever making the statement. The employer contends that the employee was terminated solely because of performance problems.
The employee may have viable disability discrimination of FMLA / CFRA interference claims claims, but there is an obvious evidentiary problem - did the employer actually make the discriminatory statement in question? 
A jury could believe the employee. But it could just as easily believe the supervisor. 

Even One Independent Witness Can Make A Case Much Stronger 
Now change one fact. Another manager happened to be standing nearby and heard the supervisor make the statement.
That manager no longer works for the company and has no relationship with the employee. When contacted later, the former manager confirms:
"Yes. I heard him say that. I remember being surprised when he said it. And I am willing to confirm this in writing by signing a declaration or testifying to this if necessary."

This does not automatically mean the employee wins. There may be other disputed issues, including whether the employee was performing satisfactorily and why the termination actually occurred. But the employer now has a much more serious evidentiary problem. The jury no longer has to decide the issue solely by choosing between two interested parties. A seemingly neutral third person, who doesn't seem to have a reason to lie, corroborates one side.
As a practical litigation matter, that can substantially change how both sides evaluate the risk of taking the case to trial.  

Stronger Evidence Usually Means Stronger Settlement Leverage
Most employment cases never reach a jury. That does not make trial evidence unimportant. Settlement negotiations are heavily influenced by what each side believes is likely to happen if the case does not settle and it does go to trial. 

Imagine two retaliation cases involving similar alleged damages.
In Case A, the employee alleges that the manager threatened to fire him for complaining to HR. The manager denies it. Nobody else heard the conversation.
In Case B, the employee makes the same allegation, but two coworkers heard the threat and one reported it in an email the same day.

Even if the legal claims and damages are otherwise similar, the litigation risk presented by the two cases may be very different. An employer evaluating Case B must consider what happens when those witnesses testify before a jury. That increased litigation risk can and often does translate into increased settlement leverage.

Therefore, it's really worth contacting as many potential witnesses  as possible and finding out whether they have any relevant information to your case and whether they would be willing to speak to your attorney, even if only confidentially. This doesn't cost anything, but it can make a difference between a "maybe" case to a much stronger case in your favor. 

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. 

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.
​
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? 

When describing the facts of your potential employment discrimination or harassment case to an attorney, be as factual and as specific as possible.  Avoid using vague legal terms and abstract adjectives that don't actually tell the attorney what happened to you. Here are three common examples to illustrate the difference and help you communicate the fact of your case more effectively from your very first contact with any lawyer: 

"My coworker called me a black bitch in the office kitchen a week ago" tells the lawyer exactly what happened. On the other hand, "my coworker racially harassed me" doesn't. Harassment could mean so many different things.  

"My boss made sexual advances to me / inappropriate touched me" doesn't provide any specific information about what happened. On the other hand, "my boss told me that if I stayed over at his place, he was going to make it worth my while after he grabbed my right breast with his left hand in his office" provides the relevant information in a clear and specific manner.   

and finally, 

"My supervisor physically attacked me" doesn't really explain what happened. On the other hand, 
"my supervisor pushed me against the wall of his office and punched me in the shoulder with his right fist, leaving a bruise, a picture of which I have and can share" explain very well what happened. 

When describing your case to an attorney, don't be shy. Be as explicit as necessary to explain exactly what happened to you. 

An empoyee who prevails in a wrongful terminaton case, based on discrimination, retaliation or harassment claim, is entitled to recover unvested stock options among other damages. Scully v. US WATS, Inc. (3d Cir. 2001) 238 F.3d 497. Just like lost future salary, the value of stock can be considered compensation that the employee would have received in the future, had he not been illegally fired. Having a schedule of vesting is of course helpful in calculating that part of employee's damages. The California Supreme Court also recognized that stock awards are considered wages under California law. Schachter v. Citigroup (2009) 47 Cal. 4th 610, 619.     

Courts have developed methods for assigning value to stock in both employment cases as well as business disputes. Valuation methods include using the stock's highest market value within a reasonable period or valuing the stock on the date of the breach of the obligation or wrongful termination. Some courts take a combined approach, basing the value of the equity as the market price of the shares on the date the employee tried to exercise their shares. In other cases, the courts have denied employees' lost equity beause it was too speculative, where, for instance, the date of potential sale of a stock that never took place is virtually impossible to determine. Jaros v. LodgeNet Entm’t Corp. 294 F.3d 960 (8th Cir. 2002).

In some cases, an employer can be ordered by court to issue equity due. This particularly applies to closely held corporations that issue their employees equity of value that cannot be ascertained and where the stock is not publicly traded. Kramer v. Puracyp, Inc. (Cal. Ct. App. Mar. 17, 2017) 

In disovery, it is important to seek information from the employer regarding the valuation of the company, including any 409A valuations conducted by the company, and valuation of the company provided for insvestors.  If a court is unable to determine the value of the stock, the law provides the alternative of specific performance. This is particularly appropriate where the company's stock is not publicly traded. 

Many employees and employers believe that workers who work illegally or whose residence or immigration papers are otherwise not in order and do not allow them to lawfully work in the us cannot enforce their employment rights, such as filing claims for discrimination, wrongful termination, unpaid wages and other workplace violations. This is not correct.

​Like with most other civil rights, immigration status has no relevance to a person's ability to make a claim against his or her employer.  Under California law, “all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” Cal. Lab. Code § 1171.5(a). The California courts has emphasized that California “statutes leave no room for doubt about this state’s public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws.” Hernandez v. Paicius (2003).  

Therefore, any employer who thinks that he can get away with discriminating, harassing, retaliating or not paying correct to an employee whose visa has expired or wasn't approved risks being sued by that employee in exactly the same way as he would be by a US citizen or a permanent resident. It's important to remember the following distinction: it's true that it's illegal to hire or be hired for work without proper employment authorization. However, if an employee who is not authorized to work in the US was hired to work, then he has virtually the same rights as any other employee. 

Our experience working on many discrimination and wrongful termination cases clearly suggests that in many cases  being placed on a PIP means that your employer has already made the decision to terminate you, and they are using the performance improvement plan process to just make it look like they are giving you another chance. Often, the same employee who is placed on PIP doesn't even have a chance to finish that 30-day, 60-day, or 90-day plan, and they are terminated way before.  In rare cases, the employer is genuine about their desire to have you improve your performance.

So, what should you do when you are placed on PIP?   
​
- The first question is whether there is any evidence that the real reason for your PIP or (upcoming) termination is illegal - i.e. the potential firing will be discriminatory or retaliatory.  Do you have grounds to believve that PIP is just an excuse to get rid of you because of your race, age, disability, filing a workers comp claim, complaining about harassment or some other unlawful reason? If so, you should consult an experienced employment attorney to determine what your best legal and practical options are for dealing with the situation.
​
If there is no evidence that your employer is trying to fire you for illegal reasons and it's a matter of not getting along with them personally, then the only thing you can and should consider doing is looking for a new job before you are terminated, and at the same time look at other options, such as resigning in exchange for some type of severance in an appropriate situation when this can be an option.

​What if you performance improvement plan is unfair and unjustified?

​Most employees disagree with the PIP they receive. This alone however has no legal bearing or relevance to your situation. Your manager is entitled to his subjective opinion of your performance, however harsh it might be.  

Should you write a rebuttal to your PIP?   

​Generally, writing rebuttals to PIP's is pretty much pointless and it doesn't have any legal or another significance. A very agressive rebuttal can also make things worse. For instance, if you "fire back" accusing the employer of being dishonest or incompetent, etc... this will only make your relationships with your employer worse.

An employee who exercises his FMLA/CFRA or ADA/FEHA rights due to a qualifying disability or serious medical condition is considered to be in a "protected" class. This means that it is illegal for an employer to treat that employee differently because of his exercise the above workplace disability rights.   

Being "protected" does not mean, however, that an employee is protected from any employment action and enjoys some kind of immunity because of his FMLA or ADA status. For instance, when a lay-off takes place, and employee who is on FMLA or ADA leave is subject to lay-off just like any other employee. It would only be illegal to choose an employee for lay-off because of his FMLA /ADA status.   

The same applies to employment terminations. A disabled employee who engages in some kind of misconduct or violates an employer's policy can be lawfully terminated just like any other employee who never applied for FMLA leave or ADA/FEHA leave or other accommodations. Being in a "protected" class is not a shield against all harm. It's only a legal remedy against being treated differently because you are a member of that class. 

Some workers turn a potentially good discrimination or wrongful termination into a no case by prematurely resigning or quitting their job. This usually happens when an employee is treated unfairly and he feels extremely unhappy at work. When quitting, that worker might believe that he is being constructively discharged. In most cases, however, bad or hurtful treatment of that employee does not rise to the level of constructive discharge, which is objectively intolerable working conditions that would force a reasonable employee resign.     

Here is a typical example of a situation where resignation would be premature and would make the potential wrongful termination and disability discrimination case more difficult to prove. Suppose you are off work on disability leave till April 30. On April 10, your employer tells you that you have to return to work by April 20 or you will be fired, and they don't care that your doctor's note instructs you to stay off till the end of the month. This is a situation where you are much better off letting the employer termination you then resigning before April 20, like some employee would choose to do. Here, resigning might completely eliminate a wrongful termination claim, since you actually haven't been terminated. Resigning may also create problems in obtaining unemployment benefits. 

If you are thinking of resigning and taking legal action against your employer for discrimination, retaliation or wrongful termination, consult a knowledgeable employment attorney in your area before you actually resign. Your attorney may be able to help enhance your case or even prevent those mistakes that will turn a good case into a not-so-great case or no case at all.