San Francisco Employment Law Firm Blog

The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer's mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

A new municipal law has been enacted by San Francisco in 2007, under which all employers must provide paid sick leave to each employee (including temporary and part-time employees) who performs work in San Francisco.

This "San Francisco Paid Sick Leave" began to accrue on February 5, 2007 for employees working for an employer on or before that date. For employees hired by an employer after February 5, 2007, paid sick leave begins to accrue 90 calendar days after the commencement of employment.

Under this law, for every 30 hours worked, an employee shall accrue one hour of paid sick leave. Employees of employers for which fewer than 10 persons (including full-time, part-time, and temporary employees) work for compensation during a given week may not have more than 40 hours of accrued paid sick leave saved at any time. Employees of other employers
may not have more than 72 hours of accrued paid sick leave saved at any time. An employee’s accrued paid sick leave carries over from year to year. Employees are entitled to paid sick leave for their own medical care and also to aid or care for a family member or designated person.

Under this San Francisco ordinance, employees who assert their rights to receive paid sick leave are protected from retaliation. The City of San Francisco can investigate possible violations of this ordinance, shall have access to employer records, and can enforce the paid sick leave requirements by ordering reinstatement of employees, payment of paid sick leave unlawfully withheld, and penalties.

If you have questions or require additional information, please contact your employer or the office of San Francisco Department of Labor Standards enforcement at (415) 554-6271.

The California Fair Employment and Housing Act basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. In addition, under FEHA, an employee with a "medical condition" which is not quite considered a disability is also entitled to a reasonable accommodation.

The following are the specific definitions of physical disability under FEHA:having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, muscular and skeletal, respiratory, speech, reproductive, digestive, urinary, lymphatic, skin, and endocrine systems. The major life activity is considered limited if it makes the achievement of that major activity difficult.

It should be noted that sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting form the current unlawful use of controlled substances or other drugs, are specifically excluded and are not protected as disabilities under FEHA.

Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would constitute an under hardship on the employer's business operation.

It is common for an employee who is subjected to discriminatory conduct or harassment at workplace in California to be afraid to complain about the harasser to his superiors for fear of retaliation and losing a job. However, an aggrieved employee simply has nothing to gain by keeping quiet. In most cases, the harasser's unlawful conduct not only doesn't stop, but becomes progressively more unacceptable and egregious, causing more stress to the victim of potential discrimination and harassment.

Even more importantly, by not complaining, and employee not only doesn't allow the employer to address discrimination and harassment and possibly discipline the harasser, but the victim virtually forecloses possibility of having viable legal claims for discrimination and harassment in the future. Unless the harasser is the aggrieved employee's supervisor, and employer is not liable for discrimination and harassment, if the employer did not know or had not reason to know that such discrimination or harassment took place.

Therefore, if you believe that you are subjected to unlawful discrimination and/or harassment at workplace, it is crucial that you complain about the conduct in writing to your human resources department and higher if necessary. In your complaints, you should outline in detail the facts and the circumstances of what you believe to be an unlawful conduct toward you at workplace, requesting prompt, thorough, formal investigation of your allegations as required by law.

One exemption from overtime compensation under Fair Labor Standards Act is known as the "Outside Salesperson Exemption." This exemption permits an employer to not pay overtime as otherwise required under California law, but only if a particular worker
(a) has the primary duty of (a) making “sales” or (b) obtaining orders or contracts for services or facilities usage, and
(b) is customarily and regularly engaged away from the employer’s place of business in performing such primary duty.

The information above can be found at 29 USC § 213(a)(1) and 29 C.F.R. § 541.500. In order to qualify for this exemption under California law, however, the employee must spend more than 50% of his/her working time performing truly-exempt sales functions away from the employer’s business establishment (or away from the employee’s home, if that is where the employee is normally based).

Another commonly applied overtime exemption applies to primarily commission-based salespeople. Section 7(i) of the Fair Labor Standards Act (29 USC § 207[i]) will exempt a particular employee from overtime compensation if:
(a) the employee is employed in a “retail or service establishment,” and
(b) the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage, and
(c) more than half the employee’s compensation for a representative period represents commissions on goods or services.

Note that the “regular rate of pay” language, referenced in the above federal test, applies on a workweek basis. This means that the average of compensation for two or more weeks does not satisfy this requirement.

If you have any questions about overtime or your rate of compensation in California, contact San Francisco employment lawyer Arkady Itkin to address your concerns about wages.

If you are an employer who has employees working at the cash register or in any other position where they exchange merchandise or services for money, due to a common human error, these employees will make mistakes and will end up with cash shortages once in a while by not balancing the cash register properly or other mistakes.

An employer should be careful to not pass these losses to the employee and not make the employee pay for those shortage or deduct the amounts missing from the employee's pay. Under California law, absent a showing of intentional dishonesty or gross negligence, an employer may not deduct for ordinary losses caused by an employee, such as cash shortages, breakage or loss of equipment, etc. Kerr's Catering Service v. Department of Industrial Relations (1962) 57 C2d 319, 329-30. The rationale behind this rule is in that losses due to an employee's simple negligence are inevitable in almost any business operation and must be borne as expenses of managing that business. The employer is in a better position to absorb those costs than the employee by having the opportunity to pass the costs to the consumer or otherwise.

California Family Rights Act (CFRA), an equivalent of the federal FMLA legislation, allows qualifying employees to take up to 12 weeks of time off work when suffering from serious medical condition. Generally, and employer does not have to trust the employee's word that he or she is or has been ill and thus unable to come to work, and the employer has the right to insist on having a medical certification to that effect.

However, some employer require the employer or the medical provider to disclose details of the medical condition of the employee who is seeking to take leave of absence under CFRA. In most cases, it is unlawful for an employer to require disclosure of such information, and disciplining or terminating employee for failure to disclose such information is no defense to CFRA discrimination, retaliation and wrongful termination claims.

The California Supreme Court has recently clarified the obligation and limitation on medical certifications that employers are entitled to obtain under CFRA in Lonicki v. Sutter Health Cent. 43 Cal.4th 201 (2008). The court looked closely at the language of the applicable legislation - specifically, California Government Code 12945(k)(1) and noted that by stating that an employee's certification “shall be sufficient” if (a) it contains the commencement date of the employee's health condition began, (b) the “probable duration of the condition,” and (c) a statement that the condition renders the employee unable to do the job, subdivision (k)(1) of section 12945 limits the type of information that an employer can require an employee to provide in a certification. For example, an employer may not require an employee seeking medical leave to provide detailed intimate and private information about a serious psychiatric condition that has made the employee unable to do the work, nor may the employer deny the employee's request for medical leave for failing to provide such information. This law also limits an employer's right, in litigation arising out of an employee's medical leave request, to claim that the employer acted reasonably because the information provided by the employee was inadequate.

Thus, if an employer fires an employee who has given the employer a legally valid certification for medical leave, and the employee then sues for violation of the CFRA, the employer may not defend the suit by asserting that the employee, when requesting leave, provided insufficient evidence that the employee fell within the provisions of the CFRA.

California Labor Code section 515.5 defines who qualifies for a computer/technology professional exemption from overtime compensation. There are three main requirements:
(1) the employee must be doing work that is "intellectual or creative" and it should require "discretion and independent judgment," which requires more than just deciding which procedures to follow but must involve substantial decision making that have real effect on the operation of the employer's business. Generally, programming, coding and creating databases qualifies as such work as it involves inquiry and innovation and it affects the quality and the usability of the software created.
(2) The employee's responsibilities primarily consist of "systems analysis techniques and procedures, including consulting with users:" these professionals must work in the "design, development, documentation, analysis, creation, testing, or modification of computer systems or programs" or similar work with computer programs "related to the design of software or hardware for computer operating systems.

(3) The professional employee must be able to engage in the "theoretical and practical application of highly specialized information to computer systems analysis." It is important to note that the employee's job title is not determinative of whether the job will qualify under this factor, and it's the nature of the job performed by the employee in question that will determine whether the employee engages in these complex functions.

California employment law also requires that these employees be paid at least $36 per hour as of January 1, 2008 in order to be exempt from overtime. This figure is adjusted every year. It can also be expressed in annual equivalents. Thus, in order to be exempt in 2008, an employee under the IT professional exemption must be paid $74,880 per year if he or she works 40 hours per week; $93,600 for 50 hours per week; $112,320.00 for 60 hours per week, and so on.

California statutes prohibiting retaliation bar termination of (or other adverse employment action against) employees asserting their legally protected rights, exercising political affiliations, opposing unlawful discrimination at workplace, or seeking statutory redress (such as investigation of discrimination, harassment, etc.)

To show retaliation under California Fair Employment and Housing Act (FEHA), an employee must show that (1) he or she engaged in protected activity under FEHA; (2) he or she suffered an adverse employment action (such as demotion, transfer, suspension, termination or other action by the employer that materially affects the terms, conditions, or privileges of employment, and/or would tend to discourage a reasonable employee from complaining about the unlawful conduct at workplace); and (3) there is a causal connection between the protected activity and the adverse employment action.

FEHA specifically prohibits an employer from retaliating against employee for opposing any unlawful discriminatory practice prohibited by FEHA, and filing a complaint, testifying, or assisting in any proceeding under FEHA.

Note, that the great power of the anti-retaliation law is in that the employee only needs to show that he or she had a "reasonable belief" that the employer practice that the employee was opposing was unlawful. It doesn't matter that a court later determines later that the practice complained of, or opposed to, is actually not illegal, as the California Supreme Court held in Yanowitz v. L'Oreal USA, Inc. (2005) 36 C4th 1028, 1043.

The California Fair Employment and Housing Act (FEHA) provides a non-exhaustive list of possible accommodations that an employer may consider to accommodate a qualified disability or medical condition of an employee. These typical reasonable accommodations include, but are not limited to:

• Making facilities accessible to and usable by disabled individuals;
• Job restructuring (modifying daily duties of an employee);
• Offering part-time or modified work schedules (to put less physical stress or allow time for medical appointments related to the disability);
• Reassigning to a vacant position;
• Acquiring or modifying equipment or devices (such as ergonomic keyboards, chairs, and lifting devices);
• Adjusting or modifying examinations, training materials or policies;and
• Other similar accommodations for individuals with disabilities as per California Government Code § 12926(n).

Because the above list is non-exhaustive and a range of other accommodations may be considered in the interactive process with an employee which employer must engage into by law, California courts look to cases decided under the ADA and Rehabilitation Act for guidance. Prilliman v. United Air Lines, Inc.

Under California law (Fair Employment and Housing Act or "FEHA") an employer has an affirmative duty to engage in a timely, good-faith interactive process with an employee who is disabled or who the employer perceives to be disabled.

The interactive process is a discussion between an employer and employee that contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings to find a reasonable accommodations to the employee's disability to the extent possible, without constituting undue hardship on the employer.

Communicating with the employee's representatives, rather than with the employee personally, may suffice in some circumstances. In Hanson v. Lucky Stores, Inc., the court noted that it was appropriate for the employer to consult with employee's doctors and vocational rehabilitation specialists in order to identify available and suitable positions and offer those to the disabled employee.

The employer must engage in a “timely, good faith interactive process ... in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. Although the law doesn't specifically provide, the California court rulings make it clear that the employer must initiate the interactive process if the employee's disability is known or apparent. An employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities. Prilliman v. United Air Lines, Inc. (1997) 53 CA4th 935, 950.

An employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.” Faust v. California Portland Cement Co. (2007) 150 CA4th 864, 887. This means that if the employee's medical condition is not apparent (such as diabetes, carpal tunnel syndrome, etc.), the employer cannot be under a legal obligation to engage in an interactive process with that employee if the employer doesn't know and has no reason to know that the employee is suffering from disability or medical condition. However, if the employee's condition is obvious (a woman with an obvious pregnancy, an employee with a cast on his hand or foot, etc...) then the employer has to initiate the interactive process of providing reasonable accommodations to that disabled employee.

As I work and get in get in contact with more San Francisco, Bay Area, and Sacramento employers and employees, I can't help but be amazed at the liability exposure that the companies-employers incur as a result of their human resources' managers ignorance of the basic disability laws that lead do series of wrongful terminations, and retaliatory demotions, suspensions and transfers, many of which are unlawful under California law.

At first, I thought my experience was an exception, but after speaking with many of my fellow employment lawyers in the area, I realized that we all noticed that the vast majority of human resources managers do not even have a general idea about what "interactive process" of employees who are disabled or perceived to be disabled is. Many of them don't even know that in most cases it is illegal to terminate employee because of his or her disability even if he or she is an at-will employee, because while at-will employment allows an employer to terminate employee for any reason, no reason or arbitrary reason, it does not permit terminating employees for unlawful discriminatory and retaliatory reasons. .

These seemingly technical violations often lead to mediation, arbitration and trial verdicts of hundreds of thousands of dollars or more, including punitive damages and attorneys fees against employers.

Many employers include a "standard" arbitration provision in their employment contracts or employee handbooks, which provides that any and all disputes arising out of the employer-employee relationship must be referred to mandatory arbitration instead of being litigated in jury trial. Generally, a mandatory arbitration provision is in the employer's interest. Please read about some of the reasons why employers may prefer arbitration of employment disputes over jury trial.

California law, like federal law, favors enforcement of of valid arbitration agreements. Broughton v. Cigna Healthplans (1999). However, a court may strike down an employer-employee arbitration agreement and find it to be invalid and unenforceable, referring the wrongful termination, discrimination, retaliation, or other employment related dispute for jury trial. One of the most common reasons that courts find certain arbitration agreements to be unenforceable is because these agreements are unconscionable.

The California Supreme Court has a very informative and detailed discussion regarding the enforceability of arbitration agreements in Armendariz v. Foundation Health Psychcare Services, Inc. 24 Cal.4th 83 (2000). In that case, the Court reiterated the holding in Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, noting that an arbitration agreement is lawful if is (1) provides for a neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court; and (5) does not require employees to pay either unreasonable costs or any arbitrator's fees or expenses as a condition of access to the arbitration forum.

Generally, an employment arbitration agreement will be denied enforcement by courts if it's unconscionable. Employment arbitration provisions are commonly struck down as unconscionable when they provide that any claims that an employee has, have to be referred to mandatory arbitration, without mentioning that the employer's claims also can only be resolved through arbitration. This is called "lack of mutuality." In other words, an arbitration agreement is unenforceable if it gives materially more rights to the employer than an employee. Thus, if the employee is denied the court forum for resolving his disputes while the employer is not, the arbitration agreement providing for such a provision will likely be invalidated.

The other common reason that the arbitration agreements are found unconscionable in the context of wrongful termination or other employment claims in California is when the agreement does not permit the full recovery of damages for employees, while placing no such restriction on the employer. Thus, the Armendariz court found the arbitration contract limiting the employees' damages to the amount of back pay lost until the time of arbitration to be an unconscionable limitation, contributing to the unenforceability of the agreement.

If you have any questions about your employment contract or any specific provisions in the agreement, including arbitration provision, feel free to contact San Francisco employment lawyer Arkady Itkin to address your concerns.

Under FLSA an employee will be considered to be paid on a "salary basis" and thus exempt for the purposes of overtime compensation, if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all of part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. 29 C.F.R. section 541.602(b)(1)(2004). Employees must also be paid a specified minimum salary in order to qualify as exempt.

The effect and the reason behind those provisions is to prevent employers from docking the pay of an employee for an absence of less than a day (partial day absence). In other words, the employer should only deduct pay for one day absences or longer. Thus, if an exempt employee takes a few hours off, that should not be deducted from pay. If an employee takes one day and a half off, the employer, with a small number of exceptions, can only deduct one day from that pay period. If the employer makes partial day deductions, then the employees subject to those deductions do not meet the salary basis test, and are non-exempt for the purposes of overtime pay.

Thus, an employer should be very careful with partial day deductions against exempt employees' pay, as classifying employees as "salaried exempt" while docking their pay for partial day absences will likely subject an employer to liability for failure to pay overtime compensation for at least the entire time that the policy of partial day deductions has been in place.

One of the most important provisions under the Bankruptcy Code that affects employment discrimination, retaliation and wrongful termination claims asserted against the employer that files bankruptcy is the "automatic stay" under the Bankruptcy Code section 362. Immediately upon filing by the employer of a bankruptcy petition, the automatic stay takes effect and prevents the plaintiff employee / former employee from proceeding with his employment claim against the debtor. Any action taken by such an employee after filing of the bankruptcy petition contrary to the automatic stay will be void even if the employee is not aware of the employer's bankruptcy filing. With certain exceptions, the automatic stay applies to all creditors, including plaintiff-employees with discrimination, harassment, and other claims.

If the employer files bankruptcy before the employee files the employment lawsuit, and the statute of limitations on the employment discrimination claim otherwise expires while the automatic stay is in effect, the employee will have until 30 days after the automatic stay is terminated to file the employment discrimination lawsuit, assuming that the claim is not discharged, otherwise extinguished, or resolved in the bankruptcy.
This 30-day period my be extended if the employee was not notified and didn't have a reason to know that the stay was terminated.

If, however, the plaintiff's lawsuit was pending at the time of the bankruptcy filing (that is, if the employee filed a lawsuit before the employer filed for bankruptcy), the suit may not continue and has to be stayed. Once, the employer emerges from bankruptcy, the stay will be lifted and the plaintiff can proceed with his action from the stage where it stopped when the petition for bankruptcy was filed.

An employer who loses or is about to lose an employment or wrongful termination case will usually argue at trial/arbitration/mediation that the plaintiff employee failed to mitigate his damages. In other words, the employer will try to convince the decision makes that the plaintiff who has been unemployed or underemployed since being terminated, could have and should have found a job long time ago and could have minimized his losses by actually working during the time that he or she was unemployed.

It is therefore very important to know that in employment and wrongful termination cases in California, the burden is on the employer to show that comparable or substantially similar employment was available to the plaintiff employee who was unlawfully terminated and was unemployed for a period of time while his wrongful termination lawsuit was pending. Substantially equivalent employment affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status as the position from which plaintiff has been terminated. Sellers v. Delgado College (1990)

This means that the unemployed or underemployment claimant need not go into another line of work, accept a demotion, or take a demeaning position. Ford Motor Co. v. EEOC (1982). Plaintiff may also properly refuse employment that is inconveniently located or unreasonably distant. Cunningham v. Retail Clerks Union (1983) Although, geographical considerations may be less of a factor for executives and professionals whose employer routinely relocate their top employees. In such cases, a wrongfully terminated employee's failure to accept a job offer solely because it requires moving to a different location may be held to be a failure to mitigate damages. Hopkins v. Price Waterhouse (1990).

A discharged plaintiff is required to make a reasonable effort to find a job. However, wrongfully discharged workers are not held to the highest standard of diligence in their efforts to find a comparable employment. Reasonable diligence requires only an ongoing, good faith effort. Minshall v. McGraw Hill Broadcasting Co., Inc. (2003) Good faith effort usually means applying for jobs that the plaintiff actually is qualified to perform and doing more than just sending a few applications and resumes per month to perspective employers.

Once the employer knows or should know about sexual or other harassment, it has a duty to take immediate and appropriate corrective actions to end it. The employer's response to harassment complaints against a particular employee or a supervisor must be reasonable calculated to end the harassment. This of course doesn't mean that an employer has to terminate the alleged harasser's employment upon receiving a complaint of harassment. A warning, reprimand, mandatory harassment training, suspension or administrative leave are some of the remedies available to an employer which may prevent further harassment and remind the harasser of the consequences of his actions.

However, conducting an investigation of harassment but taking no steps to protect employee from further harassment will not insulate an employer from liability. And if earlier discipline did not end the harassment, a more severe discipline is required. In Intlekofer v. Turnage (9th Cir. 1992) an employer was held liable when harasser, who had been verbally counseled once, repeated his harassing conduct, but employer did not take sufficient additional steps to prevent and/or remedy harassment.

Although the necessary response varies with each case, typically, an employer should:
* Take the complaint seriously;
* Do nothing that penalizes or stigmatizes the complainant or otherwise discourages the employee from complaining;
* Investigate the complaint;
* Interview the complainant, the alleged harasser, and any necessary witnesses;
* Communicate with the complainant as to the progress and conclusions of the investigation.

Sexual orientation discrimination involves treating an employee differently because of his or her sexual orientation (being gay, lesbian, or bisexual). In California, homosexual employees are protected by the same laws that protect all other workers against sexual harassment. That is, it is unlawful to harass or discriminate against employees because of their sexual orientation. This means that an employer who fails to hire, promote or otherwise provide equal conditions and privileges of employment to a homosexual employee because of his or her sexual orientation violates California anti-discrimination and anti-harassment laws and is subject to liability.

Some of the common examples of sexual orientation discrimination and harassment include being treated differently after your employer or co-workers find out about your sexual orientation, being harassed by comments of jokes about your mannerisms or sexual activity, not receiving the same compensation and bonuses as straight employees.

If you work in San Francisco, Bay Area, or Sacramento Areas, and you believe that you are subjected to sexual or sexual orientation discrimination and harassment, an experienced employment lawyer may be able to help you and guide you through the stressful time of dealing with sexual harassment at workplace the right way. The San Francisco employment lawyer Arkady Itkin will be glad to discuss your concerns with you free of charge and without any obligations. We will then be able to determine whether we can help you protect your rights and prevent further harassment.

California workplace operates under the basic presumption that in the absence of agreement otherwise, a worker is an at-will employee. This means that an employee can be terminated for any reason, arbitrary reason, or no reason, but not for illegal reason such as discrimination, harassment, and retaliation. This presumption is codified in California Labor Code section 2922, which provides that an employment, having no specified term, may be terminated at the will of either party on notice to the other.

This presumption of at-will employment may be superseded by an express or implied contract limiting the employer's right to discharge employee. The landmark California Supreme Court case on the issue of existence of implied employment contract is Foley v. Interactive Data Corporation (1988). In that case, the Court stated the general principle that courts seek to enforce the actual understanding of the parties to a contract, and in so doing may inquire into the parties' conduct to determine if it demonstrates an implied contract. The Court further noted that in the employment context, several factors may be considered to determine whether implied employment contract existed, including (1) personal policies or practices of the employer; (2) the employee's longevity of service; (3) actions or communications by the employer reflecting assurances of continued employment; and (4) the practices of the industry in which the employee is engaged.

The Foley court, considering the above factors, came to the conclusion that there was an implied contract to not terminate employment where the employee, who worked for his employer for over 6 years, received excellent performance evaluations and promotions, was told that if he was going to do a good job, his future was secure, and where the employer admitted that it did not normally fire employee without cause.

These factors, however, don't have much weight if the employee actually signed a written form, stating that he understands that he is an at will employee and may be terminated at any time with or without cause.

An individual harasser at workplace in California, whether he / she is a co-workers or a supervisor, may be personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA). This means that the employee who is a victim of sexual (or other) harassment, may be able to pursue legal action against both his or her employer and the individual who causes harassment and creates hostile work environment.

FEHA defines "supervisor" as an individual who has either (1) the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees; or (2) the responsibility to direct other employees, adjust their grievances, or effectively recommend such action on grievances, provided that the exercise of the authority or responsibility requires the use of independent judgment. Cal. Government Code section 12926(r).

For more information about FEHA please visit the site of California Department of Fair Employment and Housing.