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SAN FRANCISCO EMPLOYMENT LAW BLOG

The California legislature prioritized workers’ rights during the summer session, and you’ll likely benefit from it. Governor Gavin Newsom signed a wide range of bills into law in October that will come into effect between now and January 1, 2024. 

These new laws cover various topics that should impact every employee in California. Let’s break down the most important employment regulations you should know about for next year. 

New Protected Leave Laws

By far the area of law that saw the most expansion is the requirement for protected leave. California employers are already held to some of the most rigorous leave laws in the country, with guaranteed sick leave for most workers, widespread parental leave availability, and family and disability leave options. However, the legislature determined the current requirements did not go far enough. As of October, Governor Newsom signed two additional bills into law expanding the right to leave: Senate Bills (SB) 616 and 848.

SB 616 has been referred to as the Paid Sick Leave Expansion law, and that covers much of what the new law accomplishes. It raises the current required number of paid sick days per year from three days or 24 hours to five days or 40 hours. 

Additionally, SB 616 updates the requirements for sick leave accrual and carryover. Companies offering sick leave by accrual must grant employees at least one hour of leave for every 30 hours worked. They must also permit employees to carry over up to 40 hours of sick leave each year. These changes should help employees better care for themselves and their families without sacrificing their financial well-being.

SB 848 is just as important for families. It institutes a new form of protected leave for “Reproductive Loss.” Employers may not deny employees’ requests for protected unpaid time off work after experiencing a reproductive loss. This includes miscarriages, stillbirths, unsuccessful surrogacies or assisted reproduction, and failed adoptions. SB 848 provides workers with time to grieve and physically recover after an often grueling and traumatic loss. 

New Retaliation and Discrimination Laws

Two new retaliation and discrimination bills were passed into law this October. The first, SB 497, is invaluable for anyone who has faced workplace retaliation in California. The bill establishes a rebuttable presumption of retaliation if a worker is fired or otherwise penalized within 90 days of engaging in protected activities.

A rebuttable presumption means that the courts are instructed to assume something has occurred until proven otherwise. Under SB 497, state courts will assume that employers are retaliating against employees if they take adverse employment action against them within 90 days of reporting discrimination, retaliation, or equal pay violations. Employers must provide a legitimate reason for the adverse action other than retaliation, or the case will be decided in favor of the employees. This change makes it substantially easier for workers statewide to file retaliation claims successfully. 

Another bill that protects workers is SB 700, which institutes new protections for off-the-clock cannabis use. The law prohibits employers from requesting information from applicants or employees about their history of cannabis use to reduce the likelihood of unlawful discrimination against these workers. 

It’s worth noting one bill that was not passed. The legislature advanced SB 403, which was intended to make caste a protected class like race or religion. However, Governor Newsom vetoed the bill, stating, “Because discrimination based on caste is already prohibited under these existing categories, this bill is unnecessary.” In other words, he declined to sign the bill into law because caste discrimination is already unlawful. 

New Restrictions on Noncompete Agreements

A pair of new bills will make noncompete agreements not just void but illegal. In California, Business & Professions Code §16600 already renders noncompete clauses and contracts invalid and unenforceable. However, it does not prevent employers from including these clauses in new employment contracts, which may have a chilling effect on workers’ willingness to exercise their rights. 

SB 699 and Assembly Bill (AB) 1076 change this. AB 1076 adds §16600.1 to the Code, which makes it unlawful to add a noncompete clause in any employment contract and is retroactive to new agreements issued on or after January 1, 2022. Meanwhile, SB 699 states that §16600.1 applies to employment contracts signed anywhere in the country if enforced in California. It also grants employees a private right of action against companies that attempt to place a noncompete in new agreements. 

Public Prosecution for Labor Code Violations

Finally, AB 594 has been passed into law. This bill grants city and district attorneys the right to take civil or criminal legal action against employers violating the state Labor Code. Furthermore, it clarifies that employment agreements that prevent class action lawsuits or require arbitration do not affect public attorneys’ right to enforce the Labor Code.

This substantially expands the options for workers facing discrimination, retaliation, or other rights violations. Permitting parties other than the state labor commissioner to enforce the Code increases the likelihood that a given claim is pursued. It also ensures employers can’t avoid liability for labor violations through restrictive employment contracts. 

Stand Up for Your New Employment Rights

Over the next few months, the new laws above will be going into effect statewide. You will soon have more options if you have been denied protected leave, face retaliation or discrimination, or have an unlawful noncompete clause in your employment contract. 

No matter what mistreatment you’re facing at work, the skilled employment law attorneys at Le Clerc & Le Clerc LLP can help. Our team is dedicated to advocating for the rights of California workers. We can help you better understand your rights, determine if you have a case, and represent you in court. Schedule your consultation with our San Francisco law firm today to learn how we can support your rights. 

California’s laws regarding workplace discrimination have just become more employee-friendly. On October 8, Governor Gavin Newsom officially signed the Equal Pay and Anti-Retaliation Protection Act into law. This bill, officially titled Senate Bill (SB) 497, makes it substantially easier for employees to establish a retaliation claim in court successfully. 

Between SB 497 and California’s existing laws, it may be easier for employees to demonstrate retaliation than to prove discrimination. Below, we discuss how retaliation and discrimination differ, how the new law may make retaliatory actions easier to prove, and what you can do if you believe your employer has retaliated against you for a protected activity. 

Retaliation vs. Discrimination: How Are They Different?

Retaliation and discrimination are both ways that a company can violate its employees’ protected rights. However, the two violations occur in different contexts

Discrimination is taking adverse employment action or creating a hostile workplace because of someone’s protected characteristics. California law considered protected characteristics to include:

  • Sex, gender, and gender identity
  • Sexual orientation
  • Race, ethnicity, and national origin
  • Religion
  • Marital status
  • Disability
  • Citizenship
  • Primary language
  • Familial status and pregnancy

An employer cannot choose to fire, demote, cut hours or pay, or otherwise treat someone poorly because of these characteristics. If it does, it commits discrimination, and the victim has the right to submit a claim against them.

In contrast, retaliation is taking adverse action against someone because they exercised a protected right or engaged in a protected activity. The person’s characteristics don’t matter, just their behavior. Protected activities include:

  • Participating in religious events
  • Requesting or taking family leave
  • Requesting reasonable accommodations for a disability or pregnancy
  • Submitting a whistleblower complaint for discrimination or safety concerns
  • Filing a discrimination lawsuit against the company

If a company penalizes an employee in any way for these activities, it may be retaliatory, and the victim could file a lawsuit. 

Why Retaliation Claims May Be More Successful

Proving discrimination in court is often a complex process. Most employers are well aware that discriminating against employees for protected characteristics is illegal. As such, employers that discriminate are often doing so unintentionally, which can make collecting evidence to prove a claim more difficult. Instead of collecting direct statements, plaintiffs may need to gather substantial evidence from the company to establish a trend of discriminatory actions or the creation of a hostile workplace. 

Historically, this was also true for retaliation claims. Workers had to build a strong prima facie case for their claim before it would be considered. This frequently made it difficult for employees’ claims to be taken seriously. 

However, SB 497 should make it significantly simpler to establish retaliation in court. The new law creates a “rebuttable presumption of retaliation” if a worker is penalized or fired within 90 days of engaging in specific protected activities. Covered activities include: 

  • Filing a claim under the Equal Pay Act
  • Filing a complaint with the California Civil Rights Department
  • Reporting legal and regulatory violations to supervisors or other employees
  • Submitting a whistleblower report to a government agency

If you do any of the above and your employer fires or punishes you for any reason in the next 90 days, SB 497 instructs the court to assume that it was a retaliatory action automatically. The responsibility to prove otherwise falls on your employer, which must prove that the action was a reasonable and non-retaliatory reaction to unrelated circumstances. Only then will you need to demonstrate that the action was retaliatory despite your employer’s reasoning. This makes it significantly easier to establish your case in court and seek compensation for your losses.

Furthermore, a retaliation claim can succeed even if a discrimination claim does not. You do not need to win or even pursue a discrimination lawsuit in court to experience retaliation. Regardless of the outcome of your discrimination claim, any punitive action your employer takes against you as a result is considered retaliatory and may be grounds for its own lawsuit.

Proving Workplace Retaliation Claims in California

If you suspect you’re experiencing retaliation, it’s worth taking action. Your employer’s actions have likely cost you wages, benefits, and career opportunities. You deserve compensation for these losses, and a retaliation lawsuit can help you pursue justice. 

SB 497 makes this easier. However, if your employer provides a reasonable non-retaliatory reason for the adverse action taken against you, you will need to prove that you experienced retaliation. Depending on your circumstances, you may accomplish this by:

  • Collecting written communications: The strongest evidence for retaliatory action is a written statement by your manager or employer. These may include texts, emails, or other written messages. If you have received any threats or other communications stating that you will be punished or fired for engaging in a protected activity, save them immediately for use in your claim. 
  • Talking to your coworkers: Another valuable form of evidence is eyewitness testimony. Even if your employer has not written anything down, your colleagues are likely aware of what’s going on. If you were verbally warned in front of others, or if your coworkers have noticed that you’re being treated differently, they can testify on your behalf. 
  • Demonstrating a change in behavior by your employer: You can further support your case by showing that your employer began treating you differently after you engaged in a protected activity. If your hours were cut, your performance reviews dropped significantly, or you were fired shortly after requesting family leave, that strongly suggests retaliatory action.

If you believe you have experienced workplace retaliation, SB 497 now makes it easier to hold your employer accountable. We encourage you to reach out to the experienced employment attorneys at Le Clerc & Le Clerc LLP to discuss your situation. We can help you determine whether you have a case and the best path forward to achieve compensation for your losses. To learn more about how we can advocate for you, schedule your consultation with our California retaliation law firm today.

Imagine your spouse needs surgery, and you request time off work to care for them as they recover. Instead of granting your request, you get fired for “not being a team player.” 

Imagine you receive a cancer diagnosis and must take one day off work each week to attend and recover from chemotherapy. You get the time off, but your employer later fires you for not meeting the same productivity standards as your coworkers, who are healthy and working five days a week.

These situations and untold others are examples of being fired for taking protected leave. Not only is it unjust and harmful to fire someone caring for their family, but it’s also illegal in most situations in California. It’s considered retaliation for a protected action and grounds for a lawsuit. 

While retaliating against an employee for protected actions is illegal, it occurs too often. If you’ve been fired for taking protected leave, you have the right to hold your employer accountable. Here’s what you need to know about when your employer can fire you, what counts as retaliation, and your rights after you’ve been wrongfully terminated. 

Can You Be Fired for Taking Leave?

California offers some of the broadest protected leave in the US. Under the California Family Rights Act (CFRA), companies with five or more employees must grant eligible workers 12 weeks of unpaid family and medical leave if they meet certain conditions, including:

  • They have performed at least one year of work with the employer.
  • They have done at least 1,250 hours of work for their employer in the past year.
  • Their leave request is for their own serious medical condition, to care for a designated person with a severe health condition, or to bond with a new child.

If these conditions are met, an employer must grant the worker up to 12 weeks of time off and cannot retaliate against them for requesting or taking the time off. 

However, leave is not protected if a worker doesn’t meet these criteria. In that case, an employer can fire the worker for any reason permitted in their employment contract. 

What Counts as a Retaliatory Termination?

California is an at-will state, meaning employers and employees can choose to end their working relationship for any reason at any time. The only exceptions are for protected activities and characteristics. Employers cannot terminate an employee for features like their race or gender or for engaging in protected activities like:

  • Requesting or taking CFRA leave
  • Requesting accommodations for a disability, pregnancy, or religious belief
  • Attending or refusing to participate in religious services
  • Filing complaints about discriminatory behavior
  • Resisting harassment or assault
  • Reporting illegal activities (“whistleblowing”) to supervisors or regulatory agencies
  • Refusing to perform illegal or discriminatory actions

If you do anything listed above and your employer fires you because of it, that is considered retaliation

Your Rights After Wrongful Termination in California

If you’ve lost your job due to retaliation, that is considered wrongful termination. California grants victims of wrongful termination several options to hold their employers accountable for violating their rights. Here’s what you can expect after you’re wrongfully fired.

Standard Post-Termination Rights

No matter why you were fired, you have the same post-termination rights as any other worker. These include:

  • Receiving your final paycheck immediately.
  • Having any unused vacation or paid time off days paid out in your last paycheck.
  • Receiving notice or severance pay if required by your employment contract.
  • Being reported as terminated to make you eligible for unemployment compensation. 
  • Retaining your health insurance coverage if your employer has 20 or more employees.

These legal requirements are intended to make losing your job less devastating. While they don’t make up for wrongful termination, they provide more stability as you determine your options.

Right to Sue

If you have been wrongfully terminated, you likely have the right to file a claim against them. This could be a claim filed with the Labor Commissioner, or it could be a lawsuit. In some cases, you may begin by filing a complaint, then proceed to sue your employer. Either way, you can talk to a California employment law attorney to discuss your best course of action. 

Right to Reinstatement, Backpay, and Damages

A claim or lawsuit aims to correct the injustice you’ve suffered. While the court can’t go back in time and prevent you from losing your job, it can award you damages for the losses you’ve suffered. Potential damages include:

  • Reinstatement to your old job or a position that is substantially similar
  • Backpay for the time you did not have a job 
  • Compensation for the benefits you lost when you were fired, such as health insurance and 401(k) contributions
  • Compensation for your pain and suffering, including a damaged reputation and emotional distress
  • Attorneys’ fees to cover the cost of fighting for your rights
  • Punitive damages if your dismissal was particularly egregious

These damages aren’t guaranteed. However, if the court agrees that you were wrongfully terminated, the damages awarded can go a long way to helping you get back on your feet after losing your job.

Discuss Your Termination With Le Clerc & Le Clerc LLP

If you were fired because you needed medical leave, it might be an example of retaliation. If so, you can hold your employer accountable for violating your rights. The first step is to talk to the experienced employment law attorneys at Le Clerc & Le Clerc LLP to determine whether you have a strong case. Our team is dedicated to advocating for California workers who have suffered wrongful termination, retaliation, and other rights violations by their employers. Learn more about how we can help you by scheduling your consultation today.

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