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What kind of legal claims do employees most commonly sue over?

Many people feel there may be something going on at work that is not right, or they were fired in circumstances that do not seem quite right, but they are not sure if it is something they can or should sue over. I thought a run-down of some of the more common "fact patterns" we see in employment disputes could be helpful.


In order to sue for sexual harassment, the conduct must be either severe or pervasive. Severe means extreme. For example, a boss groping his secretary would be extreme, and just one such incident would support a sexual harassment lawsuit. Pervasive means it happens a lot. Harassment that is not severe can still support a claim for sexual harassment if it happens enough. For example, if a boss compliments his secretary's appearance, that would not be severe, and if it happens once, it would not support a sexual harassment claim. However, if the boss compliments his secretary's appearance multiple times each week, that would probably be pervasive enough to support a sexual harassment claim.

Sexual harassment does not require sexual propositions or romantic interest. If a supervisor routinely tells sexual stories or jokes that are offensive, that could be a form of sexual harassment. Ultimately, whether conduct meets the legal test for sexual harassment must be judged on a case-by-case basis.


Under state and federal laws, employees have a right to be free from disability discrimination, and any disabilities must be reasonably accommodated by the employer. Also, the employer cannot retaliate against the employee for seeking reasonable accommodation. Further, state and federal laws give many employees the right to take "protected" medical leave, meaning that the employer must keep their job safe and not replace or demote them while they are on medical leave.

There is often overlap in disability discrimination and Medical Leave Retaliation. An employee may become temporarily disabled, and the employee needs, as an accommodation, some time off to recover. Failure to provide such time off, or retaliating against the employee who takes such time off, may support claims for both disability discrimination and medical leave retaliation.


Employers often have a negative reaction to an employee's pregnancy, if they believe the employee will have to take a lot of time off for the pregnancy that will cause the employer problems. However, there are state and federal laws that protect expectant mothers, and that give many employees certain rights to "protected" leave related to a pregnancy, so that the employee's job must be kept waiting for them while they are on leave. If an employer terminates an employee after being told the employee is pregnant, or an employee who is out on maternity leave returns to work to find that she has been replaced and she is given a different position with lower pay, fewer hours, or otherwise worse for her, she may have a claim for pregnancy discrimination and/or violation of pregnancy leave laws.


It is sad but true that many employers routinely ask employees to work "off the clock." This happens often at jobs where the employees have less education and are paid less, so they are viewed as more replaceable. For example, if the manager of a restaurant asks a server to clock out but finish up some work, that is a violation.

Similarly, many employers require employees to work through lunch. However, because the employers know that the law requires the employee to take a lunch break, the employers often demand that employees clock out for half an hour as if they had taken lunch, but force them to keep working anyway. This not only deprives the employee of their mandatory lunch break, it also results in the employee working off the clock for 30 minutes.

Employees can sue for these types of violations. Further, if an employee refuses to work "off the clock" overtime, or refuses to work through lunch, and then the employer retaliates against the employee (such as by terminating the employee), that may support a legal claim for retaliation and additional damages.


Employees who "rock the boat" are often targeted for termination or other unfair treatment. However, an employer is not allowed to retaliate against an employee for reporting a violation of law, or even for reporting something that the employee reasonably suspects is a violation of law, but which turns out not to be a violation of law. The report of a violation of suspected violation must be made to an appropriate person within the company who has authority to address such violations, or to an appropriate outside agency (e.g., reporting illegal toxic dumping to the Environmental Protection Agency). (See Cal. Labor Code sec. 1102.5(b).) If an employee reports a violation or suspected violation of law to an appropriate person or entity, and the employer retaliates, the employee can sue for retaliation and could recover a civil penalty of $10,000 per incident of retaliation in addition to other remedies.

If an employee does not report a violation of law, but merely refuses to participate in the violation of law, and the employee is then retaliated against for that refusal, that also can be a form of whistle-blower retaliation. (Cal. Labor Code sec. 1102.5(c).)

Some common examples: If an employee complains to management about being forced to work off-the-clock overtime, that would be a report of a violation of law that could give rise to a whistle-blower retaliation claim, if retaliation follows. If an employee complaints of a violation of health and safety regulations (e.g., fire hazards, unsafe food handling, smoking indoors, etc.), that could qualify for whistle-blower protection. If an employee refuses to falsify paperwork and is punished for it, that may give rise to a whistle-blower retaliation claim.


Even if a person signs paperwork expressly agreeing that he or she is an independent contractor, not an employee, that person may still be an employee in the eyes of the law. Whether you are an employee or independent contractor does not rest on what the paperwork may say, but usually rests on how much control you have over the manner in which you complete your work. Independent contractors are supposed to be independent. If your boss tells you where to work, when to work, what to wear, how to do your work, who you can use to help with your work, that sort of control would support an argument you are really an employee. If you were not paid overtime or given mandatory meal and rest breaks because your boss treated you as an independent contractor, you could be owed substantial back pay and damages.

People also often assume if they are on salary, they do not get overtime. That is false. There are some types of employees who are exempt from overtime, but many employees on salary are not exempt from overtime. If you are not paid overtime, but you do not spend most of your time doing managerial duties, or outside sales, or other work that fits into one of the exempt categories, you may be entitled to overtime, as well as meal and rest breaks.

These are just some examples of the types of cases we handle.

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