Employment Law

Most California employees now sign mandatory arbitration agreements.

Are they enforceable?

Yes—due to the Ninth Circuit’s ruling in Chamber of Commerce v. Bonta (2023), California’s AB 51 ban is largely preempted by the FAA.

Arbitration agreements MUST comply with Armendariz

Employers must provide:

• Neutral arbitrator
• Right to discovery
• Written decision
• All statutory remedies
• Employer-paid arbitration costs

BLG litigates employment cases in both private arbitration and public court, depending on the contract.

Available Damages in CaliforniaEmployment Cases

You may recover:

• Lost wages / back pay
• Future wage loss / front pay
• Emotional distress damages
• Medical expenses for psychological treatment
• Punitive damages (for malicious or reckless conduct)
• Attorney’s fees
• Reinstatement (in some cases)
• Civil penalties

FEHA allows uncapped emotional distress and punitive damages, making it one of the strongest worker-protection laws in the nation.

SB 497 (Retaliation Enhancement)

Creates a strong presumption of retaliation for adverse actions taken within 90 days of protected activity.

SB 331–The Silenced No More Act

Prohibits employers from forcing NDAs that silence victims of:

• Harassment
• Discrimination
• Retaliation

Only settlement dollar amounts may be confidential.

AB 933—Anti-Defamation Protection for Victims

Employees who report sexual harassment cannot be sued for defamation based on their good-faith statements.

FEHA §12923 Update

Clarifies that harassment need not be severe and pervasive—either is sufficient.

California law prohibits retaliation for:

• Reporting illegal activity
• Reporting harassment or discrimination
• Filing a complaint with HR
• Refusing illegal orders
• Participating in an investigation
• Asking for disability accommodation
• Filing a workers’ compensation claim
• Taking CFRA / FMLA leave

Under CACI 2505 (Retaliation), a plaintiff must show:

1. They engaged in protected activity.
2. The employer took adverse action (termination, demotion, write-ups, etc.).
3. There is a causal connection between the two.
4. The employee suffered harm.

You do NOT need to be expressly fired to have a wrongful termination case.

If working conditions become so intolerable that any reasonable employee would feel compelled to resign, the law treats the resignation as a termination.

Under CACI 2431/2432, an employee must show:

1. The employer either required illegal conductor
2. The employer created intolerable conditions that violate public policy.
3. A reasonable person would have no choice but to resign.
4. The employee resigned because of these conditions.
5. Harm resulted.
6. The employer’s conduct was a substantial factor.

Examples include:

• Intense, repeated harassment
• Retaliation after reporting misconduct
• Demanding illegal acts
• Unsafe or dangerous working conditions
• Severe pay cuts meant to force resignation

Wrongful termination is a standalone tort claim grounded in California Supreme Court precedent, including Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.

Courts also highlight public-policy principles in:

• Stevenson v. Superior Court (1997) 16 Cal.4th 880
• Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083 (partially overruled but still widely cited)
• Garcia-Brower v. Premier Automotive (2020) 55 Cal.App.5th 961

To prove wrongful termination (CACI 2430), an employee must show:

1. An employment relationship existed.
2. The employer terminated the employee.
3. The termination was substantially motivated by an unlawful or public-policy-violating reason, such as:
   • Reporting illegal activity
   • Reporting harassment or discrimination
   • Refusing to violate the law
   • Engaging in a legal duty or right
   • Filing a workers’ compensation claim
   • Taking CFRA/FMLA leave
4. The termination caused harm.

Public policy must be:

• Anchored in statute or constitution
• Fundamental
• Well-established
• Beneficial to the public

To prove a workplace harassment / hostile environment claim, an employee must establish the following (adapted from CACI 2521A):

1. The employee worked for or applied to the employer.
2. The employee was subjected to unwelcome harassing conduct based on a protected characteristic (e.g., gender, disability, race).
3. The conduct was severe or pervasive enough to interfere with work or create an abusive environment.
4. A reasonable person in the employee’s circumstances would find the environment hostile, intimidating, offensive, or abusive.
5. The employee personally considered the environment abusive.
6. Employer liability:
   • A supervisor committed the harassment, or
   • The employer knew or should have known and failed to act.
7. The employee suffered harm.
8. The harassment was a substantial factor in causing harm.

FEHA (Gov. Code §12923) clarifies that harassment does not need to be both severe and pervasive—either may be enough.

Sexual harassment may include:

• Requests for sexual favors
• Unwanted touching
• Lewd comments, jokes, or messages
• Sexual propositions
• Spreading rumors about someone’s sexuality
• Displaying sexual images
• Stalking or intimidating conduct
• Conditioning benefits on sexual cooperation (quid pro quo)

California law holds employers strictly liable for sexual harassment committed by supervisors.

A Hostile Work Environment Is Illegal—Even If No Firing Occurred

California’sFair Employment and Housing Act (FEHA), Gov. Code §§ 12940–12996, prohibits harassment on the basis of:

• Sex, gender, gender identity, gender expression
• Sexual orientation
• Race, color, ethnicity, national origin
• Disability (mental or physical)
• Religion
• Age (40+)
• Pregnancy, childbirth, lactation
• Marital status
• Medical condition
• Military / veteran status
• Any protected personal characteristic

Harassment becomes unlawful when it creates a hostile, intimidating, abusive, or oppressive work environment—or when tolerating such behavior becomes a condition of employment.

California Labor Code §2922 presumes employment is “at-will”, meaning:

• An employer may terminate an employee at any time,
• With or without cause,
• With or without notice.

But at-will employment is NOT a shield for illegal conduct.

Termination becomes unlawful when it is based on:

• Protected characteristic s(race, gender, disability, age, religion, etc.)
• Harassment or hostile work environment complaints
• Retaliation for reporting wrongdoing
• Refusing to participate in illegal acts
• Taking protected medical or family leave
• Whistleblowing
• Testifying about workplace violations
• Exercising FEHA rights

In those circumstances, the termination becomes wrongful, actionable, and compensable.