Quick Answer: Age discrimination occurs when an employee or job applicant is treated less favorably because of age. The federal Age Discrimination in Employment Act (ADEA) protects workers and applicants who are 40 or older, and California workers also receive protections under the Fair Employment and Housing Act (FEHA). It can appear in hiring, promotions, layoffs, performance reviews, retirement pressure, and harassment, and it is more often subtle than obvious.
Experience should be an asset in the workplace, not something used against you.
Unfortunately, older employees and job applicants are sometimes treated differently because of assumptions about their age. A longtime employee may suddenly be described as “set in their ways.” A qualified applicant may be passed over because a company wants someone with “fresh energy.” Or an experienced employee may be selected for a layoff while younger employees remain.
Sometimes age discrimination is obvious. More often, it is subtle.
Key Takeaways
Age discrimination protections generally begin at age 40 under both the federal ADEA and California law.
California’s FEHA protections generally apply to employers with five or more employees, while the federal ADEA generally applies to employers with 20 or more.
It is often subtle: repeated age or retirement comments, sudden poor reviews after years of strong performance, exclusion from training or advancement, or being replaced by a significantly younger employee.
It can happen during recruiting and hiring, not only on the job. California’s Civil Rights Department has identified practices such as seeking “digital natives” or limiting how much experience an applicant may have.
Employees over 40 can still be included in legitimate layoffs. What an employer cannot do is select someone for termination because of their age.
Employees are protected against retaliation for raising age-discrimination concerns, and claims are subject to filing deadlines, so do not wait too long to seek advice.
What Is Age Discrimination?
Age discrimination occurs when an employee or job applicant is treated less favorably because of age.
The federal Age Discrimination in Employment Act (ADEA) protects workers and applicants who are 40 or older from age discrimination in hiring, firing, promotions, layoffs, compensation, job assignments, training, and other employment decisions.
California workers also receive protections under the Fair Employment and Housing Act (FEHA). California’s protections generally apply to employers with five or more employees, while the federal ADEA generally applies to employers with 20 or more employees.
Protection
Federal ADEA
California FEHA
Protected age group
40 or older
40 or older
Employers generally covered
20 or more employees
Five or more employees
What Can Age Discrimination Look Like?
Age discrimination is not always someone directly saying, “You are too old.”
Warning signs may include:
* Repeated comments about your age or retirement
* Younger, less experienced employees receiving opportunities you do not
* Being passed over for promotions despite strong qualifications
* Suddenly receiving poor reviews after years of positive performance
* Being excluded from training, meetings, or advancement opportunities
* Hearing phrases such as “younger blood,” “fresh faces,” “digital natives,” or “new energy”
* Being pressured to retire
* Older workers being disproportionately selected during layoffs
* Being replaced by a significantly younger employee
One comment or employment decision does not automatically prove discrimination. What matters is the overall pattern and circumstances.
Age Discrimination Can Happen During Hiring
You do not have to already work for a company to be protected.
Age discrimination can happen during recruiting and hiring as well. For example, an employer may use job advertisements or recruiting practices that discourage applicants over 40.
California’s Civil Rights Department has specifically identified practices such as seeking “digital natives” or placing limits on how much experience an applicant may have as potential age-discrimination concerns.
Can an Employer Lay Off Older Employees?
Yes. Employees over 40 can still be included in legitimate layoffs or reductions in force.
What an employer cannot do is select someone for termination because of their age.
If a layoff disproportionately affects older employees while substantially younger employees in similar positions remain, that does not automatically establish discrimination, but the circumstances may deserve a closer look.
Age-Based Harassment Can Also Be Illegal
Age discrimination is not limited to hiring and firing.
Repeated jokes, insults, comments, or other offensive conduct directed at an employee because of age may also raise legal concerns. An occasional stray comment may not be enough by itself, but frequent or severe conduct that creates a hostile work environment can potentially violate the law.
Can Your Employer Retaliate Against You for Complaining?
Employees should be able to raise concerns about age discrimination without being punished.
Retaliation may include termination, demotion, reduced hours, undesirable assignments, exclusion from opportunities, or other negative treatment after an employee complains about suspected discrimination.
If your employer’s treatment of you suddenly changes after you raise an age-discrimination concern, document what happens.
If you believe you were passed over, pressured to retire, targeted in a layoff, or terminated because of your age, Gomerman | Bourn & Associates can help you understand your options.
What Should You Do If You Suspect Age Discrimination?
Start documenting what is happening.
Save relevant emails, text messages, performance reviews, disciplinary notices, job postings, and communications regarding promotions or layoffs.
If someone makes an age-related comment, write down what was said, when it happened, and who was present.
Also pay attention to patterns. Who received promotions? Who was terminated? Who was hired? Did management suddenly begin criticizing older employees for issues that were previously overlooked?
Employment discrimination claims are also subject to filing deadlines, so do not wait too long to seek advice.
180Days: general deadline to file an EEOC charge under the federal ADEA
300Days: extended EEOC deadline that may apply in states such as California, where a state agency also enforces age-discrimination laws
Frequently Asked Questions
What age is considered an “older worker”?
For purposes of the federal ADEA and California employment protections, the protected age group generally begins at 40 years old.
Can my employer fire me because I am over 40?
An employer may terminate an employee over 40 for a legitimate, nondiscriminatory reason.
What an employer cannot do is fire someone because of their age.
Can someone over 40 discriminate against another older employee?
Yes.
The person engaging in discrimination does not have to be younger. For example, a 55-year-old supervisor could potentially discriminate against a 65-year-old employee because of age.
What if my employer keeps asking when I plan to retire?
Simply asking about retirement does not automatically establish discrimination.
However, repeated pressure to retire, age-related comments, or retirement discussions followed by termination, demotion, or another negative employment action may become relevant evidence.
Can I be retaliated against for reporting age discrimination?
No. Covered employees are protected against retaliation for opposing age discrimination or participating in protected proceedings involving an age-discrimination claim.
How long do I have to file an age discrimination claim?
Deadlines depend on the law and type of claim.
For federal ADEA claims, an EEOC charge is generally due within 180 days, although the deadline may extend to 300 days in states such as California where a state agency also enforces age-discrimination laws.
Because different claims can have different deadlines, employees should seek advice promptly rather than assume they have a specific amount of time.
Experience Should Not Be a Liability
Getting older does not make an employee less valuable.
Years of experience, institutional knowledge, professional relationships, and developed skills often make longtime employees incredibly valuable to an organization.
If you believe you were passed over for a promotion, pressured to retire, targeted during a layoff, terminated, harassed, or otherwise treated differently because you are 40 or older, it may be worth taking a closer look at what happened.
At Gomerman | Bourn & Associates, we represent employees throughout California in matters involving workplace discrimination, retaliation, harassment, wrongful termination, and other violations of employee rights.
If you believe your age played a role in an employment decision, contact our office to discuss your situation.
This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship.
Quick Answer: Not automatically. California does not have strict liability for drivers who rear-end other vehicles. Striking a vehicle from behind is important evidence, and it often points to a following-distance or unsafe-speed violation, but liability still depends on the circumstances surrounding the crash and on what each driver was doing before it. Because California follows a comparative fault system, a jury can assign percentages of responsibility to more than one driver.
You are stopped at a red light when suddenly you feel the impact.
Someone has hit you from behind.
Most people immediately assume the answer is simple: the rear driver is automatically at fault.
And in many rear-end collisions, the driver who strikes the vehicle in front may ultimately be found responsible. But “usually” and “always” are not the same thing.
California law looks at what each driver was doing before the crash: whether they were driving reasonably under the circumstances and whether the actions of more than one person contributed to the collision.
Key Takeaways
The rear driver is often found responsible, but California has no rule making that automatic.
Vehicle Code sections 21703 and 22350 set the following-distance and safe-speed rules, and violating them can be negligent per se under Evidence Code 669.
The front driver may share responsibility, or be fully responsible, after conduct such as an unsafe lane change, reversing, stopping without justification, or driving with brake lights that are not working.
California follows a comparative fault system, so a jury can assign percentages of responsibility among multiple people.
In chain-reaction crashes, the sequence of impacts matters more than where each vehicle ended up.
Photographs, witness information, reports, and footage gathered early can decide a disputed liability fight.
Why Is the Rear Driver Often Considered at Fault?
Drivers have a responsibility to leave enough space between their vehicle and the vehicle ahead to respond safely to changing traffic conditions.
When a rear-end collision happens, it’s usually due one or more vehicle code violation:
California Vehicle Code section 21703 prohibits a driver from following another vehicle more closely than is reasonable and prudent, considering factors such as the speed of the vehicles, traffic, and road conditions.
California Vehicle Code section 22350 prohibits drivers from driving “at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property”
A driver who violates either or both of these vehicle code sections can be deemed negligent per se under Evidence Code 669.
21703Vehicle Code section on following more closely than is reasonable and prudent
22350Vehicle Code section on driving at a speed greater than is reasonable or prudent
669Evidence Code section under which such a violation can be negligence per se
That means a driver should generally leave enough room to react if the car ahead slows down or stops.
Think about everyday driving.
Traffic suddenly backs up on Highway 101. A light turns red. A pedestrian enters a crosswalk. A vehicle ahead brakes because another driver cuts into the lane.
Drivers are expected to anticipate that traffic conditions can change.
If someone is following too closely, looking at their phone, speeding, distracted, or simply not paying attention and crashes into the vehicle ahead, those facts can be important when determining negligence.
But Is the Rear Driver Automatically Liable?
No.
California does not have strict liability for drivers who rear-end other vehicles. However, the fact that one vehicle struck another from behind is important evidence, but liability still depends on the circumstances surrounding the crash.
Sometimes the actions of the front driver, another driver, or even multiple parties may have contributed to what happened.
For example, imagine a vehicle suddenly cuts in front of another car and immediately brakes. The rear driver may have had little or no time to react.
Or imagine a multi-car collision where one vehicle is pushed into another vehicle.
The final position of the cars does not necessarily tell the entire story.
That is why we look at how the collision actually happened and what both vehicles were doing before the collision, not simply which part of each vehicle was damaged.
When Could the Front Driver be Responsible?
There are situations where the driver in front may potentially share some responsibility or be fully responsible for a rear-end collision.
Depending on the facts, that could include situations involving:
An unsafe or sudden lane change
Unexpectedly reversing into another vehicle
Stopping in a traffic lane without a reasonable justification
Driving with brake lights that are not functioning
Cutting directly in front of another vehicle without leaving adequate space
Other conduct that contributes to causing the collision
None of these circumstances automatically determines fault either.
The question is what each driver did and whether that conduct contributed to the crash.
What If More Than One Driver Was at Fault?
This is particularly important in California because California follows a comparative fault system.
Fault does not necessarily have to be all-or-nothing.
A jury can consider the responsibility of multiple people and assign percentages of fault based on their respective contributions to the injury. California’s civil jury instructions specifically address allocating responsibility when the plaintiff, defendants, or others may have contributed to the harm. (See California Civil Jury Instructions, Nos. 405, 406, 3933).
For example, imagine a jury determines:
Driver
Share of responsibility
Rear driver
80% responsible
Front driver
20% responsible
If the front driver was injured, that person’s recovery could potentially be reduced based on their percentage of responsibility.
What About Chain-Reaction Rear-End Collisions?
This is where things can become much more complicated.
Imagine you are stopped in traffic.
A vehicle stops behind you.
A third vehicle crashes into that vehicle and pushes it into yours.
Technically, the second vehicle rear-ended you. But that does not necessarily mean its driver caused the collision.
Now imagine four or five vehicles are involved.
Determining responsibility may require looking at:
Which vehicle made the first impact
The sequence of impacts
Vehicle damage
Driver and witness statements
Dashcam or surveillance footage
Police reports
Skid marks and roadway evidence
Cell phone or other evidence when relevant
Accident reconstruction in more complicated cases
A chain-reaction crash is a good example of why you should not assume fault simply by looking at where each vehicle ended up.
What Evidence Matters After a Rear-End Collision?
Evidence can disappear quickly after a crash.
If you are able to do so safely, photographs and video of the scene can be extremely helpful.
Try to document the vehicles before they are moved, if it is safe and lawful to do so.
Take pictures of the damage, surrounding roadway, traffic signals, lane markings, debris, skid marks, weather conditions, and anything else that may help explain what happened.
If you were injured in a rear-end collision and an insurer has already decided who was at fault, Gomerman | Bourn & Associates can help you understand your options.
What Damages Can Be Involved in a Rear-End Collision Claim?
A rear-end collision can cause much more than damage to a bumper.
Depending on the circumstances and the injuries involved, a personal injury claim may include compensation for losses such as:
Medical expenses
Future medical treatment
Lost wages
Loss of future earning capacity
Property damage
Pain and suffering
Emotional distress
Loss of enjoyment of life
Other reasonable accident-related expenses
The value of any particular case depends on its individual facts.
Frequently Asked Questions
If someone rear-ended me, do I still need evidence?
Yes.
Even when liability appears straightforward, disputes can arise over how the collision occurred, the severity of the impact, your injuries, medical treatment, and damages.
Documenting the crash from the beginning can make a significant difference.
What if I was stopped when I was hit?
Being completely stopped can be an important fact when evaluating liability.
But the entire sequence of events still matters, particularly in multi-vehicle crashes.
What if the other driver says I stopped too quickly?
Drivers are generally expected to maintain a reasonable and prudent following distance based on speed, traffic, and roadway conditions.
Whether your stop was reasonable and whether the other driver had adequate time and distance to respond will depend on the facts.
What if my injuries did not hurt immediately?
Not every injury becomes obvious at the scene of a collision.
If you begin experiencing symptoms after the crash, document them and consider obtaining appropriate medical evaluation.
How long do I have to file a personal injury lawsuit in California?
In general, California gives a person two years from the date of injury to file a personal injury lawsuit. Different deadlines and exceptions can apply, particularly when a government entity is involved, so waiting until the deadline approaches can create unnecessary problems. We cover this further in our post on how long you have to file a personal injury claim in California.
Rear-End Does Not Automatically Mean Simple
Rear-end collisions sometimes look straightforward.
They are not always.
Who was following whom? How fast were the vehicles traveling? Did someone suddenly change lanes? Was traffic stopped? Were the brake lights working? Was another vehicle involved? What do the photographs show? What do the witnesses say?
Those details matter.
At Gomerman | Bourn & Associates, we represent individuals injured in motor vehicle collisions and other personal injury matters throughout California.
We are trial attorneys, and we understand that determining responsibility means looking beyond assumptions and examining what actually happened.
If you were injured in a rear-end collision and have questions about fault, insurance, or your injuries, contact our office to discuss your situation.
Every accident is different. Every injury is different. And the facts matter.
This article is provided for general informational purposes only and does not constitute legal advice. Every case is different, and you should consult with an attorney regarding your specific circumstances.
Quick Answer: Illegal employer retaliation happens when an employer takes adverse action against an employee because the employee exercised a legally protected right. Common examples include termination or demotion, reduced hours or pay, sudden discipline or negative reviews, schedule changes or reassignments, exclusion or increased scrutiny, and threats or intimidation.
Speaking up at work can feel risky, even when you know you are doing the right thing.
Maybe you reported harassment, complained about unpaid wages, requested protected medical leave, or reported something you reasonably believed was illegal. Then, not long afterward, something changed.
Your hours were cut. You suddenly started getting written up. You were excluded from meetings, passed over for a promotion, demoted, or even terminated.
When an employer takes action against an employee because the employee exercised a legally protected right, it may be unlawful retaliation.
At Gomerman | Bourn & Associates, we represent California employees in retaliation and other workplace matters. Retaliation is not always obvious. Sometimes it is disguised as a performance issue, scheduling decision, or a routine business change.
Knowing what to look for can help employees recognize when something may not be right.
Key Takeaways
Retaliation is not always obvious. It can be disguised as a performance issue, a scheduling decision, or a routine business change.
Protected activity can include reporting harassment or discrimination, complaining about unpaid wages, requesting protected leave or a reasonable accommodation, and reporting conduct you reasonably believe is illegal.
Retaliation does not always mean getting fired. Reduced hours or pay, sudden discipline, reassignments, and exclusion can also be adverse actions.
Timing can be important evidence, but timing alone does not prove retaliation.
Deadlines differ by claim: certain CRD claims generally have a three-year filing period, while many Labor Commissioner retaliation complaints must be filed within one year.
Document dates, conversations, witnesses, and changes to your job, and do not wait too long to seek legal advice.
What Is Protected Activity?
California law protects employees from retaliation for exercising many workplace rights. Depending on the circumstances, protected activity may include:
Reporting discrimination or harassment
Complaining about unpaid wages, overtime, or missed breaks
Requesting or taking legally protected leave
Requesting a reasonable accommodation
Reporting conduct you reasonably believe violates the law
Participating in certain workplace investigations
Refusing to participate in unlawful conduct
Discussing wages with coworkers
Filing a workers’ compensation claim
Many protections apply when an employee raises concerns internally with a supervisor or HR, rather than with a government agency.
What Can Retaliation Look Like?
Retaliation does not always mean getting fired. Depending on the circumstances, it can include:
Termination or Demotion
Being fired, demoted, or having significant responsibilities taken away after engaging in protected activity may be retaliation.
Reduced Hours, Pay, or Opportunities
A sudden reduction in hours or pay, loss of overtime, or being passed over for a promotion or other opportunity may be retaliation.
Sudden Discipline or Negative Reviews
An employee who previously had a good performance history may suddenly begin receiving write-ups, warnings, or negative evaluations after making a complaint.
Schedule Changes or Reassignments
A significant change in shift, location, schedule, or responsibilities can be retaliation.
Exclusion or Increased Scrutiny
Being left out of important meetings or communications, closely monitored, or suddenly held to different standards than coworkers may also be relevant.
Threats or Intimidation
Threatening or intimidating an employee because they exercised a protected workplace right can also raise serious retaliation concerns.
Form of retaliation
What it can look like
Termination or demotion
Being fired, demoted, or stripped of significant responsibilities after engaging in protected activity
Reduced hours, pay, or opportunities
A sudden cut in hours or pay, loss of overtime, or being passed over for a promotion
Sudden discipline or negative reviews
Write-ups, warnings, or negative evaluations after a complaint despite a good performance history
Schedule changes or reassignments
A significant change in shift, location, schedule, or responsibilities
Exclusion or increased scrutiny
Being left out of important meetings, closely monitored, or held to different standards than coworkers
Threats or intimidation
Threatening or intimidating an employee for exercising a protected workplace right
None of these actions automatically proves retaliation. The important question is whether the employer took adverse action because of the employee’s protected activity.
Does Timing Matter?
Yes, but timing alone does not prove retaliation.
If an employee makes a complaint and is terminated shortly afterward, the timing may be important evidence. But other facts matter too, including whether the decision-maker knew about the complaint, the employee’s previous performance history, how other employees were treated, and whether the employer’s explanation for its decision is consistent with the evidence.
The entire picture matters.
If you believe you were fired, demoted, disciplined, or otherwise treated differently because you exercised a legally protected right, Gomerman | Bourn & Associates can help you understand your options.
If something at work suddenly changes after you exercise a protected right, document what is happening.
Keep track of dates, conversations, witnesses, changes to your job, and relevant emails or other records you are lawfully entitled to retain.
It is also important not to wait too long to seek legal advice. Different California retaliation claims have different filing deadlines. For example, certain claims handled by the California Civil Rights Department generally have a three-year filing period, while many retaliation complaints within the Labor Commissioner’s jurisdiction must be filed within one year.
3Years: general filing period for certain claims handled by the California Civil Rights Department
1Year: filing deadline for many retaliation complaints within the Labor Commissioner’s jurisdiction
Because the applicable law and deadline depend on the circumstances, speaking with an employment attorney early can help you understand your options.
You Have the Right to Speak Up
Employees should not have to choose between protecting their workplace rights and protecting their jobs.
If you believe you were fired, demoted, disciplined, cut in pay or hours, or otherwise treated differently because you exercised a legally protected right, it may be worth taking a closer look at what happened.
At Gomerman | Bourn & Associates, we represent California employees in retaliation, discrimination, harassment, and wrongful termination matters.
Contact us for a confidential consultation to discuss your workplace rights.
Frequently Asked Questions
Does retaliation always involve being fired?
No. Retaliation can potentially involve demotion, reduced pay or hours, discipline, denial of opportunities, significant schedule or assignment changes, or other adverse employment actions.
Can I be protected if I complained to HR?
Yes, depending on the circumstances. Many California retaliation protections cover certain internal complaints as well as reports made to government agencies.
How long do I have to file a retaliation claim?
It depends on the law involved. Some California retaliation claims have significantly shorter deadlines than others, so employees should not assume they have years to act.
What if my employer says I was fired for poor performance?
Employers may take action for legitimate, non-retaliatory reasons. In a retaliation case, evidence such as timing, prior performance history, inconsistent explanations, and how other employees were treated may become important.
This article is provided for general informational purposes only and does not constitute legal advice. Retaliation claims are highly fact-specific, and different laws may impose different legal standards and filing deadlines. Reading this article does not create an attorney-client relationship.
Quick Answer: In California, property owners and businesses generally have a responsibility to use reasonable care in maintaining their property, and that can include taking reasonable steps to protect people from foreseeable criminal activity. When warning signs such as broken gates, poor lighting, or repeated complaints are ignored and someone gets hurt, the property owner may share responsibility for what happened. These cases are called negligent security claims.
When you walk into an apartment building, hotel, shopping center, parking garage, restaurant, or other business, you probably aren’t thinking about whether the locks work, whether the parking lot is properly lit, or whether management has ignored complaints about safety.
You shouldn’t have to.
We expect the places we live, visit, shop, and work to be reasonably safe. Unfortunately, sometimes there are warning signs that something isn’t safe, and those warning signs are ignored.
Maybe a security gate has been broken for weeks. The parking garage is dangerously dark. Tenants have complained about people getting into their building who shouldn’t be there. Or maybe there have been previous incidents, but nothing was done to address the problem.
Then someone gets hurt.
When that happens, the person who committed the crime may not be the only person responsible.
Key Takeaways
A property owner is not automatically responsible because a crime happened on their property. What the owner knew, or should have known, before the incident is what matters.
Warning signs can include broken gates or locks, poor lighting, unsecured entrances, security cameras that do not work, previous criminal activity, and complaints that were never addressed.
California courts consider foreseeability: what the property owner knew, what they reasonably should have known, and what steps could reasonably have been taken.
Evidence disappears quickly. Security footage can be overwritten, repairs can erase dangerous conditions, and witnesses become harder to find, so speaking with an attorney early can help preserve it.
California generally allows two years to file a personal injury claim, but some claims have much shorter deadlines, including a six month deadline for claims against government entities.
What Is a Negligent Security Claim?
In California, property owners and businesses generally have a responsibility to use reasonable care in maintaining their property. Depending on the circumstances, that can include taking reasonable steps to protect people from foreseeable criminal activity.
These cases are commonly referred to as negligent security claims.
A property owner isn’t automatically responsible simply because a crime happened on their property. What matters is what happened before the incident.
Were there warning signs? Did management know about them? Should they have known? Were reasonable steps taken to fix the problem?
Those are the types of questions that need to be answered.
Negligent security can involve things like broken gates or locks, poor lighting, unsecured entrances, security cameras that don’t work, previous criminal activity, or repeated complaints that were never addressed.
These incidents can happen at apartment complexes, hotels, shopping centers, restaurants, bars, parking garages, retail stores, office buildings, and other properties.
What Happened Before the Incident Matters
After an assault, robbery, shooting, or other violent incident, the immediate focus is understandably on what just happened.
But what happened before the incident can be just as important.
Maybe tenants had been complaining about the broken gate for months. Maybe management knew an exterior door wasn’t locking. Maybe employees had reported suspicious activity. Maybe there had already been other incidents on the property.
This is where the details really matter.
California courts consider foreseeability when determining whether a property owner had a duty to take certain security precautions. That means looking at what the property owner knew, what they should reasonably have known, and what steps could reasonably have been taken.
Sometimes, you don’t know the full story until you start looking.
When Staff See Trouble Coming
Not every security failure involves a broken lock or a dark parking lot.
Sometimes the warning signs happen right in front of employees.
Customers start arguing. A person storms out, then comes back. A fight is clearly building, and no one does anything.
California courts have recognized that businesses like bars and restaurants may have a duty to take reasonable, simple steps when they have notice that someone is in danger. Depending on the circumstances, that might mean separating the people involved, keeping someone from coming back inside, or calling the police.
These aren’t expensive security measures. They are the kinds of basic steps a business can take in the moment.
When nobody takes them, and someone gets hurt, that matters.
If you or someone you love was seriously injured in an assault, shooting, robbery, or other violent incident on someone else’s property, we can help you understand your options.
One of the biggest concerns in these cases is preserving evidence.
Security footage can be overwritten. A broken gate can suddenly be repaired. A lock can be replaced. Employees leave, and witnesses become harder to find.
Evidence may include security footage, photographs, police reports, maintenance records, prior complaints, incident reports, emails or texts to management, access records, and information about previous incidents.
Public records can also help. Cities, police departments, and licensing agencies may have records of prior complaints, calls for service, or permit problems.
Social media can also help, too. Whether from the business or from people who were there when the incident happened, videos often get posted online on Facebook, Tik Tok, X, Instagram, Reddit, Citizen, and Nextdoor and they can reveal important information about what happened and who was involved when security did not prevent harm.
And sometimes the most important piece of evidence isn’t in the police report.
It may be an email sent months earlier telling management that the security gate hadn’t worked in weeks.
That can completely change the picture of what happened.
Where Evidence May Come From
Source
Examples
The property itself
Security footage, maintenance records, incident reports, prior complaints, access records
Your own records
Photographs, emails or texts to management, saved complaints, witness contact information
Public records
Police reports, calls for service, licensing and permit records
Social media
Videos posted by the business or by people who were there, on platforms like Facebook, TikTok, X, Instagram, Reddit, Citizen, and Nextdoor
What Should You Do After an Incident?
First, make sure you are safe and get medical attention if you need it.
If you can, take pictures of the area where the incident happened. Photograph broken gates, doors, locks, lighting, entrances, exits, or anything else that seems important. Save any emails, texts, or complaints you previously sent to management. If someone witnessed what happened, get their contact information.
Most importantly, don’t assume security footage or other records will automatically be saved.
Speaking with an attorney early can help preserve important evidence before it disappears.
2Years: California’s general statute of limitations for personal injury claims
6Months to file a claim against a state or local government entity
Frequently Asked Questions
Can I sue a property owner if I was attacked on their property?
Possibly. An attack happening on someone’s property doesn’t automatically make the property owner responsible. You have to look at what the owner knew or should have known, what security measures were in place, and whether a security failure contributed to what happened.
What if there had never been an attack there before?
That doesn’t necessarily mean there isn’t a claim. Previous crimes can be important, but they aren’t the only thing that matters. Other complaints, threats, security problems, or circumstances may also show that there was a safety issue that should have been addressed.
What if the gate or door lock was broken?
That could be important, especially if management already knew about it. How long it had been broken, whether anyone had complained, and whether the problem allowed someone to access the property are all things that may need to be investigated.
What compensation may be available?
Depending on the circumstances, damages may include medical expenses, future medical care, lost wages or earning capacity, pain and suffering, emotional distress, and other losses resulting from the injuries.
Can the landlord or a security company be responsible?
Possibly. More than one party may share responsibility. A property owner who knows a tenant is operating in a dangerous or unlawful way and does nothing about it may face liability in some circumstances. If a business hired an outside security company, that company may also be responsible for how its guards did their jobs. Leases, security contracts, and insurance policies can all be important in figuring out who may be responsible.
What if my family member was killed?
California law allows certain family members, such as spouses and children, to bring a wrongful death claim when a loved one dies because of someone else’s negligence. Damages may include the financial support your loved one would have provided, as well as the loss of their love, companionship, comfort, guidance, and care. No amount of money makes up for that loss, but a claim can help hold the responsible parties accountable and provide for the family’s future.
The business served alcohol to the person who attacked me. Is that enough?
Usually not on its own. California law generally protects businesses from liability simply for serving alcohol, with narrow exceptions, such as selling alcohol to an obviously intoxicated minor. But a business that served alcohol may still be responsible for other failures, like ignoring a fight that was building or failing to keep a dangerous person out.
How long do I have to file a claim in California?
California generally has a two-year statute of limitations for personal injury claims, but there are exceptions, and some claims have much shorter deadlines (suing the state or a local government entity requires filing a form within 6 months of the incident, for example). It is always better to have your specific situation reviewed rather than assume you have two years.
Sometimes There Is More to the Story
After something terrible happens, it’s easy to focus only on the person who caused the immediate harm.
But sometimes there is more to the story.
Was there a problem that should have been fixed? Had people already complained? Did someone know about a danger and fail to address it?
At Gomerman | Bourn & Associates, we represent plaintiffs who have been seriously injured because someone else failed to take reasonable steps to keep them safe.
When we investigate a serious injury, we don’t just want to know what happened. We want to understand what happened before, who knew about it, and whether something could have been done differently.
If you or someone you love was seriously injured or if you lost a family member in an assault, shooting, robbery, or other violent incident at an apartment complex, hotel, business, parking facility, or other property, contact Gomerman | Bourn & Associates to discuss what happened and learn more about your options.
This article is provided for general informational purposes only and does not constitute legal advice. Every case is different. Reading this article or contacting the firm does not create an attorney-client relationship, and past results do not guarantee future outcomes.
Judicial Council of California, CACI No. 1005, Business Proprietor’s or Property Owner’s Liability for the Criminal Conduct of Others. Justia: CACI No. 1005
Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, California Supreme Court decision addressing foreseeability and a property owner’s duty involving third-party criminal conduct. Stanford Law School: Ann M. v. Pacific Plaza Shopping Center
Castaneda v. Olsher (2007) 41 Cal.4th 1205, California Supreme Court decision addressing a landlord’s duty concerning foreseeable criminal acts by third parties. Stanford Law School: Castaneda v. Olsher
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, California Supreme Court decision addressing a bar’s duty to provide minimal measures to protect patrons. FindLaw: Delgado v. Trax Bar & Grill
Morris v. De La Torre (2005) 36 Cal.4th 260, California Supreme Court decision addressing a restaurant’s duty to take simple measures, such as calling 911, when a patron is in danger. FindLaw: Morris v. De La Torre
Quick Answer: Under California’s Fair Employment and Housing Act (FEHA), unlawful workplace harassment generally involves unwelcome conduct connected to a legally protected characteristic, such as race, sex, disability, age, religion, sexual orientation, or gender identity. Not every rude comment or difficult boss is illegal: the law looks at why an employee is being targeted and at the nature, severity, frequency, and circumstances of the conduct.
Most of us know what it feels like to have a difficult day at work. Maybe a supervisor is rude. A coworker makes an inappropriate comment. Someone plays favorites. Or you work with a manager who is simply difficult to deal with.
But when does bad workplace behavior cross the line into illegal harassment?
That distinction matters.
Under California law, not every unpleasant, unfair, or even offensive workplace interaction is necessarily unlawful harassment. For harassment to be unlawful, it must involve conduct connected to a legally protected characteristic, such as race, sex, age, and others specifically listed in the relevant statute.
Understanding the difference can help employees recognize when workplace behavior may be more than just inappropriate and when it may violate the law.
Key Takeaways
For harassment to be unlawful, it must involve conduct connected to a legally protected characteristic. A toxic workplace or bad management alone is not automatically illegal.
FEHA’s harassment protections cover employees, applicants, unpaid interns, volunteers, and contractors, and they apply even in workplaces with fewer than five employees.
Harassment does not have to be sexual, and it does not have to be physical. California regulations recognize verbal, physical, visual, and sexual forms, and it can happen in person or through emails, texts, workplace messaging systems, social media, and video meetings.
A single incident of harassing conduct can potentially be sufficient under California Government Code section 12923.
Employers are automatically liable for harassment by a supervisor or manager, and retaliation for reporting harassment is separately prohibited.
In general, an employment discrimination complaint must be filed with the CRD within three years.
What Makes Workplace Harassment Unlawful Under California Law?
California’s Fair Employment and Housing Act (FEHA) prohibits workplace harassment based on protected characteristics.
California’s Civil Rights Department (CRD), which is the government agency that enforces FEHA, explains that FEHA prohibits harassment of employees, applicants, unpaid interns, volunteers, and contractors based on a protected category. Unlike FEHA’s employment discrimination provisions, California’s prohibition against workplace harassment applies even in workplaces with fewer than five employees. [1]
Protected characteristics under California law include, among others:
Race
Color
Ancestry
National origin
Religion
Age (40 and older)
Disability
Medical condition
Sex (including pregnancy)
Gender
Gender identity
Gender expression
Sexual orientation
Marital status
Genetic information
Military or veteran status
Harassment may also involve conduct based on more than one protected characteristic.
The important point is this: being treated badly at work and being subjected to unlawful harassment are not always the same thing.
The question is not simply whether the conduct was offensive. The question is why the employee was being targeted.
<5FEHA’s harassment prohibition applies even in workplaces with fewer than five employees
1A single incident of harassing conduct can potentially be sufficient (Gov. Code § 12923)
3Years, in general, to file an employment discrimination complaint with the CRD
What Can Workplace Harassment Look Like?
Harassment does not have to be physical. California regulations recognize several forms of potentially unlawful harassment, including verbal, physical, visual, and sexual conduct. [2]
Depending on the circumstances, examples could include:
Racial slurs or derogatory comments
Offensive jokes about someone’s religion or national origin
Repeated comments about an employee’s age
Mocking an employee because of a disability
Offensive comments about someone’s sexual orientation
Derogatory comments about gender identity or gender expression
Sexually explicit jokes or comments
Unwanted sexual advances
Displaying offensive pictures, cartoons, messages, or objects
Blocking someone’s movement or physically intimidating them
Repeatedly sending offensive texts, emails, messages, or images
Making any part of the job dependent upon accepting sexual advances (called “quid pro quo” harassment)
Harassment can happen in person, but it can also happen through email, text messages, workplace messaging systems, social media, video meetings, or other forms of communication.
The workplace has changed. Harassment does not have to happen while two people are standing inside the same office.
Does Harassment Have to Be Sexual?
No. This is one of the biggest misconceptions surrounding workplace harassment.
Sexual harassment is one type of unlawful harassment, but California law protects employees from harassment based on numerous protected characteristics, as described above.
Is One Offensive Comment Enough?
This is where workplace harassment cases become very fact-specific. The legal rule is that harassment is unlawful if it is “severe or pervasive,” and whether the conduct meets that standard depends on the specific facts and context.
Not every rude comment, inappropriate joke, or isolated incident creates a legal harassment claim.
California law directs courts to consider the totality of the circumstances when evaluating whether conduct rose to the level of unlawful harassment. California law also recognizes that a single incident can potentially be sufficient when the conduct has unreasonably interfered with an employee’s work performance or created an intimidating, hostile, or offensive environment. [3]
That means there is no simple mathematical formula. It is not necessarily, “This happened three times, so now it is harassment.”
The nature of the conduct matters. The frequency matters. The severity matters. The circumstances matter.
What Is a Hostile Work Environment?
“Hostile work environment” is another phrase that is often misunderstood.
Having a boss who is difficult, demanding, unfair, or unpleasant does not automatically mean you are working in an unlawful hostile work environment.
The hostility must be connected to a protected characteristic for it to fall within employment harassment laws.
For example, a supervisor who yells at everyone, regardless of sex, race, or other protected characteristic, may be a terrible manager while not creating an unlawful hostile work environment. But if that supervisor repeatedly uses racial slurs toward one employee or group of employees, mocks another employee’s disability, or makes degrading sexual comments toward employees, the legal analysis is very different.
California law also says that for harassment to be unlawful, the conduct must be reasonably hostile, offensive, intimidating, or abusive. This means that a reasonable person in the harassment victim’s position, meaning someone with the same protected characteristic, would consider the conduct to be hostile, offensive, intimidating, or abusive.
Again, context matters.
Difficult workplace (not automatically unlawful)
Potentially unlawful harassment
A supervisor who is rude, demanding, or unfair to everyone
Conduct targeting an employee because of a protected characteristic
A rude comment, inappropriate joke, or isolated incident, standing alone
Conduct severe or pervasive enough that a reasonable person in the employee’s position would find it hostile, offensive, intimidating, or abusive
Favoritism or general unfairness unrelated to a protected category
Racial slurs, mocking an employee’s disability, or degrading sexual comments
Bad management that treats everyone the same way
A single severe incident that unreasonably interferes with an employee’s work performance (Gov. Code § 12923)
Who Can Be the Harasser?
It does not have to be your boss, but the employer still needs to be aware of the conduct to be held liable for harassment by a peer or someone not in a supervisory role.
Depending on the circumstances, workplace harassment can involve:
A supervisor
A manager
A coworker
Someone in another department
A client
A customer
A vendor
Another nonemployee encountered through work
Employers are automatically liable for harassment by a supervisor or manager. For the employer to be liable for harassment by a non-supervisor, look for facts that indicate the employer should have been on notice of the harasser’s conduct, such as:
Prior complaints against the harasser
A manager observed some of the harassing behavior
Someone told a manager about the harassing behavior
The harassing conduct is done openly and/or is known by multiple colleagues, such that the employer cannot reasonably deny knowledge
What About Sexual Harassment?
Sexual harassment deserves particular attention because it can take many forms.
California’s Civil Rights Department describes sexual harassment as including unwanted sexual advances and visual, verbal, or physical conduct of a sexual nature. It can also include gender-based harassment. [1]
Examples include:
Unwanted sexual advances
Requests for sexual favors
Sexual jokes or comments
Comments about someone’s body
Sexually explicit messages or images
Unwanted touching
Sexual gestures
Displaying sexually suggestive materials
Offering workplace benefits in exchange for sexual conduct
Threatening negative employment consequences for rejecting sexual advances
Sexual harassment can occur between people of the same or different genders, and the conduct does not have to be motivated by sexual desire to potentially constitute prohibited harassment.
Can Harassment Happen Outside the Office?
Potentially, yes.
The fact that something happened outside the physical workplace does not necessarily mean it cannot be connected to someone’s employment.
Harassing conduct could potentially occur during a work trip, conference, company party, client event, off-site meeting, text message, video call, or other work-related setting.
Remote work did not eliminate workplace harassment. It simply created additional places where inappropriate conduct can occur.
If you believe what is happening at work has crossed the line from inappropriate behavior into unlawful harassment, Gomerman | Bourn & Associates can help you understand your rights.
What Should You Do If You Believe You Are Being Harassed?
Document what is happening.
Keep copies of relevant emails, text messages, direct messages, screenshots, written warnings, performance reviews, and other communications.
If someone makes an offensive comment in person or on a phone or video call, write down:
What was said
When it happened
Where it happened
Who said it
Who witnessed it, if anyone
If your employer has a harassment reporting policy, review it and consider using the appropriate reporting process.
California requires employers to maintain harassment, discrimination, and retaliation prevention policies that include a complaint process providing for a timely response, impartial investigation, documentation, appropriate remedial options, and timely closure. The complaint mechanism also cannot require an employee to complain only to their immediate supervisor. [6]
Most importantly, preserve your own records where appropriate. Do not assume you will always have access to your company email, messaging platform, or other employer-controlled systems.
What Happens After You Report Harassment?
An employer must take a harassment complaint seriously.
California requires employers to take reasonable steps to prevent and correct wrongful workplace behavior. CRD guidance recommends prompt, thorough, and fair investigations and appropriate remedial action when misconduct is found. [6]
Employees are also protected against unlawful retaliation for reporting or opposing conduct they reasonably believe violates anti-harassment laws or for participating in certain investigations and proceedings.
California’s CRD explains that protected activity can include speaking out against harassment, participating in an investigation, seeking advice from the CRD, or filing a complaint. [7]
If you report harassment and suddenly find yourself being written up, demoted, removed from the schedule, excluded from opportunities, or terminated, document that too.
The retaliation may become a separate legal issue.
Frequently Asked Questions
Is a toxic workplace the same thing as an unlawful hostile work environment?
Not necessarily.
A workplace can be toxic, dysfunctional, unfair, or unpleasant without violating California’s harassment laws.
For workplace harassment to fall within FEHA, the conduct must have a connection to a protected characteristic, such as race, religion, sex, disability, age, sexual orientation, gender identity, national origin, and other protected characteristics. [1]
The distinction can be frustrating because workplace conduct can be extremely unfair and even abusive, without being illegal.
Bad management is not automatically illegal management.
Does my boss have to be the person harassing me?
No.
Harassment may come from supervisors, coworkers, clients, customers, vendors, or other people encountered through your employment. [4]
Who committed the harassment will, however, affect the legal analysis concerning an employer’s responsibility.
Can one incident constitute workplace harassment?
Potentially.
FEHA, at California Government Code section 12923, specifically provides that a single incident of harassing conduct may be sufficient to create a triable issue regarding the existence of a hostile work environment when the conduct has unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive environment. [3]
The severity and circumstances of the incident matter.
What is the difference between discrimination and harassment?
The terms are related, but they are not identical.
Discrimination requires an adverse employment actions or differences in the terms and conditions of employment because of a protected characteristic. Examples might include refusing to hire someone, terminating an employee, demoting an employee, denying a promotion, or paying someone differently because of a protected characteristic.
Harassment involves unwelcome conduct based on a protected characteristic that creates an offensive, intimidating, or abusive work environment. Harassment does not require an adverse employment action.
Sometimes the same situation can involve both discrimination and harassment.
Is bullying illegal in California?
Workplace bullying is not automatically unlawful harassment under FEHA.
If someone is rude, demeaning, aggressive, or difficult toward everyone regardless of protected characteristics, that behavior may be inappropriate without necessarily constituting unlawful harassment.
But if the bullying is directed at someone because of race, sex, disability, age, religion, sexual orientation, or another protected characteristic, different legal protections may apply. [1]
Can I be harassed while working remotely?
Yes.
Harassment can occur through emails, texts, video meetings, messaging applications, social media, phone calls, or other electronic communications. Harassment does not necessarily have to happen inside a traditional workplace. [5]
Can my employer retaliate against me for reporting harassment?
California law prohibits retaliation against employees for engaging in activities protected by FEHA.
Protected activities can include complaining about harassment, participating in an investigation, filing a complaint with the CRD, or otherwise opposing conduct the employee reasonably believes is unlawful. [7] This can include pushing back on a supervisor’s harassing conduct and thereafter experiencing some adverse employment action.
The legal analysis differs from harassment in that retaliation requires some adverse employment action, such as termination, demotion, discipline, loss of opportunities, schedule changes, transfers, or other negative employment actions when they are taken because of protected activity.
How long do I have to file a workplace harassment complaint in California?
Deadlines are extremely important. If you miss a legal deadline, you could lose the right to pursue your case.
The California Civil Rights Department states that, in general, an employment discrimination complaint must be filed with the CRD within three years of the alleged discriminatory act.[1]
Different deadlines can apply depending on the claim, applicable law, and circumstances. Employees should not wait until they believe a deadline is approaching before seeking legal advice.
You Have the Right to Work Without Unlawful Harassment
No employee should have to accept unlawful harassment as simply being “part of the job.”
At the same time, not every uncomfortable or even abusive workplace interaction creates a legal claim under California employment laws. That is why the facts matter so much.
What happened? How often did it happen? How serious was it? Who was involved? Why were you being targeted? Did management know? What happened after you reported it?
Those details can make the difference between inappropriate workplace behavior and conduct that may violate California law.
At Gomerman | Bourn & Associates, we represent California employees in matters involving workplace harassment, discrimination, retaliation, and wrongful termination.
If you believe what is happening at work has crossed the line from inappropriate behavior into unlawful harassment, contact our office to discuss your situation. We provide free confidential consultations.
You do not have to know exactly what legal term applies before asking questions about your rights.
Sources
[1] California Civil Rights Department, Employment Discrimination and Sexual Harassment FAQs. Official California guidance concerning FEHA, protected characteristics, workplace harassment, sexual harassment, employer coverage, and CRD complaint deadlines. (Civil Rights Department)
[2] California Civil Rights Department, FEHA Regulations, 2 CCR § 11019. California regulations identifying verbal, physical, visual, and sexual forms of harassment. (Civil Rights Department)
[3] California Government Code § 12923. California statutory guidance concerning hostile work environment harassment, including consideration of the totality of the circumstances and potentially actionable single incidents. (Leginfo)
[4] U.S. Equal Employment Opportunity Commission, “Harassment.” Federal guidance regarding unlawful harassment, severe or pervasive conduct, potential harassers, hostile work environments, and examples of offensive conduct. (EEOC)
[5] U.S. Equal Employment Opportunity Commission, Workplace Harassment Guidance. EEOC guidance explaining that harassment can be verbal, physical, or visual and may occur on or off the work site. (EEOC)
[6] California Civil Rights Department, “Workplace Harassment Prevention Guide for California Employers” and Sexual Harassment Fact Sheet. California guidance concerning employer harassment policies, complaint procedures, investigations, prevention, and corrective action. (Civil Rights Department)
[7] California Civil Rights Department, “Workplace Retaliation Is Against the Law.” California guidance regarding protected activity and retaliation following complaints of workplace harassment or discrimination. (Civil Rights Department)
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. California employment laws are fact-specific and may change. The application of any law depends on the particular circumstances involved. Reading this article does not create an attorney-client relationship.
Quick Answer: If you were seriously injured in a fall on a California construction site, workers’ compensation may not be the only claim available. When a company other than your employer (such as a general contractor, subcontractor, property owner, developer, or equipment supplier) caused or contributed to the hazard, you may also have a third-party negligence claim, and the recoverable damages in that claim are generally broader.
Construction workers face risks every day that most of us never have to think about. Working on scaffolding, climbing ladders, navigating unfinished structures, and working around multiple contractors and heavy machinery can all be part of a normal workday.
Unfortunately, it only takes one unsafe condition or one mistake for that workday to change someone’s life.
Falls remain one of the most serious hazards in construction, and being struck by equipment or materials is not far behind. California’s Division of Occupational Safety and Health, commonly known as Cal/OSHA, has extensive safety requirements intended to protect workers from these and other construction-site hazards (for examples of their requirements, see Cal/OSHA’s fact sheet on fall protection and Portable Ladder Safety eTool).
But when someone is injured on a jobsite, there is an important question that sometimes gets overlooked:
Was someone other than the injured worker’s employer responsible for what happened?
Key Takeaways
Workers’ compensation is a no-fault system, but its benefits can be more limited than the damages available in a third-party claim.
Construction sites often involve many companies: general contractors, subcontractors, property owners, developers, equipment suppliers, and other vendors may all owe an injured worker a duty of care.
A third-party claim requires proving negligence, and it can add damages such as pain and suffering, the full extent of lost income, and loss of future earning capacity.
A safety-rule violation can support a “negligence per se” presumption under Evidence Code section 669, and Cal/OSHA provisions may be used to establish the standard of care in claims against third parties.
The two claims interact: a workers’ compensation insurer typically has a right to be reimbursed out of a third-party recovery.
When a Workplace Accident May Involve a Third Party
Most employees injured while doing their jobs will look first to workers’ compensation for benefits. But construction sites can be different, because there are often several companies working in the same space at the same time.
A jobsite may include several parties which could become defendants in a civil action if they owed the injured worker a duty of care and their actions or omissions caused the worker’s harm. These parties may include a general contractor, subcontractors, property owners, developers, equipment suppliers, scaffolding companies, trucking and delivery companies, and other vendors. In addition to the worker, the insurance carrier who paid out worker’s compensation benefits to them may have their own direct right of action against these parties.
That does not mean another company is automatically liable to the worker and/or their employer’s workers compensation insurance simply because it was working at the same jobsite. California law in this area can be complicated, and liability depends heavily on the individual circumstances, including the relationships between the companies involved and who controlled the work or the hazard.
What a Third-Party Claim May Add to Workers’ Compensation
Workers’ compensation is a no-fault system and comes into play when the injured worker’s employer purchases worker’s compensation insurance. While an injured employee generally does not have to prove anyone did anything wrong in a worker’s compensation claim, the financial compensation can be more limited than in a third-party claim.
A third-party claim requires proving that someone else was negligent (it could also involve proving the employer was negligent in the situation where the employer did not purchase worker’s compensation insurance). When that can be shown, the categories of recoverable damages are generally broader and may include pain and suffering, medical bills, the full extent of lost income, and loss of future earning capacity.
It is also worth understanding that the two claims interact. When an injured worker recovers from a third party, the workers’ compensation insurer typically has a right to be reimbursed out of that recovery for benefits it already paid.
At a glance
Workers’ compensation
Third-party claim
Who the claim involves
The injured worker’s employer’s workers’ compensation insurance
A company other than the employer, such as another contractor, a property owner, a developer, or an equipment supplier
Proving fault
No-fault: generally no need to prove anyone did anything wrong
Requires proving the third party was negligent
Compensation
Benefits can be more limited
Generally broader damages, which may include pain and suffering, medical bills, the full extent of lost income, and loss of future earning capacity
How they interact
The insurer typically has a right to be reimbursed out of a third-party recovery
May be pursued alongside a workers’ compensation claim in appropriate cases
Examples of Falls on a Construction Site
Cal/OSHA’s fact sheets show the multitude of common ways falls can occur at construction sites and what rules are in place to attempt to prevent them. A violation of one of these rules could show that the company and its employee were negligent. However, even without a violation, negligence could be proven if the company or its employee were unreasonable under the circumstances. Below are some examples of common falls:
1. Scaffolding Falls
A scaffolding fall can result in devastating injuries, even when the distance does not initially seem significant.
California has specific safety regulations governing the construction, use, stability, access, and maintenance of scaffolding.
After an accident, some of the questions that may need to be answered include: Who assembled the scaffolding? Who inspected it, and how often? Was it properly secured? Was something damaged or defective? Did another contractor move or alter it? And, importantly, who was responsible for the area where the accident occurred?
Those details can make a significant difference when determining whether someone outside the injured worker’s employer may share responsibility.
2. Ladder Accidents
Ladders are such an ordinary part of construction work that it can be easy to underestimate how dangerous they can become.
California regulations address the condition, selection, placement, maintenance, and safe use of portable ladders.
Following a ladder accident, an investigation may look at whether the ladder was appropriate for the job, whether it was damaged or unstable, how it was positioned, and whether another person or company’s actions contributed to the fall.
Sometimes what initially looks like a straightforward workplace accident turns out to involve much more.
3. Other Common Trips and Falls
Not every serious fall involves height. Jobsites accumulate debris, offcuts, extension cords, air hoses, stacked materials, and uneven or temporary walking surfaces, and a fall at ground level can still cause fractures, head injuries, and lasting harm.
These falls raise a useful question on a multi-contractor site: whose materials created the hazard, and who was responsible for keeping that area clear? The answer is frequently not the injured person’s own employer.
What a Safety Violation Can Mean for a Claim
California recognizes a principle often described as negligence per se. Under Evidence Code section 669, a presumption that someone failed to use reasonable care can arise where that person violated a statute or regulation, the violation caused the injury, the injury resulted from the kind of harm the rule was designed to prevent, and the injured person was among the class of people the rule was intended to protect.
This is a presumption rather than an automatic result. It can be rebutted, a defendant may still dispute causation and damages, and negligence per se is not a separate claim in itself.
Construction cases carry an additional wrinkle. For decades, Labor Code section 6304.5 barred injured workers from relying on Cal/OSHA provisions in claims against companies other than their own employer. The Legislature amended that statute in 1999, and in Elsner v. Uveges — itself a scaffolding collapse case — the California Supreme Court confirmed that Cal/OSHA provisions may be used to establish a standard or duty of care in negligence actions, including actions against third parties. That is one more reason to identify the applicable regulations and any Cal/OSHA inspection findings early.
A Note on Claims Against the Party That Hired the Contractor
One area where California law is particularly involved concerns claims brought by a contractor’s employees against the party that hired that contractor — often a property owner, a developer, or the general contractor.
Under a line of California cases beginning with Privette v. Superior Court, a hirer is generally presumed to have delegated responsibility for jobsite safety to the contractor it hired, which limits when that contractor’s own employees may sue the hirer. Narrow exceptions exist — among them where the hirer retained control over the work and affirmatively contributed to the injury (Hooker v. Department of Transportation), where it furnished unsafe equipment (McKown v. Wal-Mart Stores, Inc.), and where it failed to warn of a concealed hazard the contractor could not reasonably have discovered (Kinsman v. Unocal Corp.). More recent decisions have reinforced how narrowly these exceptions are applied.
Two practical points follow. This rule concerns claims against the hirer; it does not eliminate potential claims against other contractors whose own negligence caused a fall. And it generally does not apply to people who were never employed by the hired contractor at all, such as delivery drivers and others visiting the site for a different company.
Seriously injured on a construction site? Our personal injury attorneys can investigate what happened and help you understand your options.
Some claims are based less on a specific careless act and more on the condition of the property itself. In California, a person or company that owns, controls, or maintains a property generally has a duty to use reasonable care to keep it in a reasonably safe condition for people who are lawfully there. That is often referred to as premises liability.
These claims frequently turn on notice: did the responsible party know about the dangerous condition, or should it reasonably have discovered it? That question tends to be answered with evidence about how long the hazard existed, whether anyone had complained about it before, whether inspections were actually being performed, and whether the condition was repaired, guarded, or at least warned about once it was known.
How a Company Can Be Responsible for One Person’s Mistake
Under California law, an employer can generally be held responsible for the negligent acts of its employees committed within the course and scope of their employment. That principle is one of the main reasons an injured person’s claim may be against a company rather than only against the person who made the mistake.
Separately, a company may face responsibility for its own conduct, for example, where it failed to properly train or supervise the people operating its equipment, or where it hired or continued to employ someone it knew or should have known was not operating safely. These are distinct theories, and more than one can apply to the same accident.
Injured in a Fall on a Construction Site?
If you have been seriously injured at work, figuring out what happened should not be another burden you have to carry alone.
A construction fall accident claim in California may involve workers’ compensation, a potential claim against a third party, or both. Every situation is different, which is why understanding who was involved and what caused the accident matters.
At Gomerman | Bourn & Associates, we represent injured people throughout California. When a construction accident may involve the negligence of someone other than the injured person’s employer, our personal injury attorneys can investigate what happened, identify the parties involved, and help determine what legal options may be available.
If you or someone you love has been seriously injured on a construction site, we are here to help you understand what comes next.
Frequently Asked Questions
Can I sue someone if I was injured in a construction fall at work?
Possibly. Workers’ compensation generally provides benefits for employees injured on the job, but there are circumstances in which an injured worker may also have a claim against an independent third party. Whether that applies depends on the facts of the accident.
Can I receive workers’ compensation and still have a third-party claim?
In some cases, yes. They are separate types of claims, although they interact — including because a workers’ compensation insurer generally has a right to reimbursement out of a third-party recovery for benefits it has paid.
Who might be considered a third party?
Depending on the circumstances, it could potentially be another contractor or subcontractor, an equipment company, a property owner, a developer, or another person or business involved with the project.
How long do I have to bring a claim?
There are deadlines, and they are not the same for every type of claim. Personal injury claims in California are generally subject to a statute of limitations, and workers’ compensation has its own separate and often much shorter reporting and filing requirements. Some claims — for example, those involving a public entity — have significantly shorter deadlines. Because missing a deadline can end a claim regardless of its merits, it is worth getting advice early rather than waiting.
What if I was partly at fault for the accident?
California follows a comparative fault approach, which generally means that being partly at fault reduces a recovery rather than eliminating it. People often assume they have no claim because they believe they made a mistake, and that assumption is not necessarily correct.
I was not a construction worker — I was making a delivery to the site. Does this apply to me?
It may. People injured on jobsites while working for outside companies, such as trucking, delivery, supply, or service businesses, can be in a strong position to pursue a claim against the contractor whose conduct or equipment caused the injury, while still receiving benefits through their own employer.
What should I do after a construction accident?
Your health comes first. Seek appropriate medical attention and report the accident as required. When possible, preserving photographs, witness information, equipment details, and other evidence can also be important, because construction sites can change very quickly.
Quick Answer: California employees have significant workplace rights in 2026, including a $16.90 statewide minimum wage, overtime pay, meal and rest breaks, at least five days or 40 hours of paid sick leave per year, job-protected family and medical leave, equal pay and pay transparency protections, and protection from discrimination, harassment, and retaliation.
For many of us, Labor Day means a three-day weekend, one last summer gathering, or simply an extra day away from work.
But Labor Day has always been about something much bigger: workers.
The holiday grew out of a labor movement that fought for safer workplaces, fair wages, reasonable hours, and dignity on the job. Many of the protections employees rely on today exist because generations of workers were willing to speak up and demand change.
As we celebrate Labor Day, it is also a good opportunity to remember what those efforts mean for California employees today.
Key Takeaways
California’s statewide minimum wage is $16.90 per hour in 2026, and some cities, counties, and industries require higher rates.
Many nonexempt employees are entitled to overtime pay after eight hours in a workday or 40 hours in a workweek.
Covered employees are generally entitled to a 30-minute meal period when working more than five hours, plus paid 10-minute rest periods.
Eligible employees must receive at least five days or 40 hours of paid sick leave per year, whichever is greater.
California law protects employees from discrimination, harassment, and retaliation for exercising their workplace rights.
Know Your Rights at Work
California provides employees with significant workplace protections. While the law varies depending on the employee, employer, and circumstances, some of the rights workers should know include:
$16.90California’s statewide minimum wage per hour in 2026
40Hours of paid sick leave per year (or 5 days, whichever is greater)
30Minute meal period when working more than five hours
Fair Pay and Overtime
California’s statewide minimum wage is $16.90 per hour in 2026, although some cities, counties, and industries have higher minimum wages. Many nonexempt employees are also entitled to overtime pay, including when they work more than eight hours in a workday or 40 hours in a workweek.
Meal and Rest Breaks
Covered California employees are generally entitled to a 30-minute meal period when working more than five hours and paid 10-minute rest periods based on the number of hours worked.
California law protects employees from unlawful workplace discrimination and harassment based on protected characteristics, including race, religion, sex, pregnancy, disability, age, sexual orientation, national origin, and others protected by law.
Equal Pay and Pay Transparency
California employees have protections against certain unlawful pay disparities. Employees can also request the pay scale for their current position, and employers with 15 or more employees generally must include pay scales in job postings.
Protection From Retaliation
Employees may also be protected when they speak up about unlawful workplace practices or exercise certain workplace rights. Retaliation is not limited to termination. Depending on the circumstances, it can include demotion, reduced hours or pay, discipline, threats, or other adverse employment actions.
California Workplace Rights at a Glance
Right
What California Law Provides
Minimum wage
$16.90 per hour statewide in 2026; some cities, counties, and industries require more
Overtime
Overtime pay for many nonexempt employees after eight hours in a workday or 40 hours in a workweek
Meal and rest breaks
A 30-minute meal period when working more than five hours, plus paid 10-minute rest periods based on hours worked
Paid sick leave
At least five days or 40 hours per year, whichever is greater
Protected leave
Job-protected family or medical leave under laws such as the CFRA
Equal pay and pay transparency
Protection against certain unlawful pay disparities; pay scale on request, and in job postings for employers with 15 or more employees
Discrimination and harassment
Protection based on race, religion, sex, pregnancy, disability, age, sexual orientation, national origin, and other protected characteristics
Retaliation
Protection for speaking up about unlawful practices or exercising workplace rights
Labor Day Is More Than a Day Off
The workplace has changed tremendously since the early labor movement, but the principle behind Labor Day remains just as important:
Workers deserve to be treated fairly.
At Gomerman | Bourn & Associates, we represent California employees who believe their workplace rights have been violated. Whether the issue involves discrimination, retaliation, harassment, wrongful termination, unpaid wages, or protected leave, knowing your rights can be an important first step.
This Labor Day, we celebrate the people behind the work and the generations of workers who helped make today’s workplace protections possible.
Because every employee deserves to know their rights.
If you believe your workplace rights have been violated, the California employment attorneys at Gomerman | Bourn & Associates are here to help.
California’s statewide minimum wage is $16.90 per hour, effective January 1, 2026. Some local jurisdictions and industries require higher rates.
How much paid sick leave do California employees receive?
Eligible employees generally must be provided at least five days or 40 hours of paid sick leave per year, whichever is greater.
Does California require meal and rest breaks?
Generally, yes. Covered employees are typically entitled to a 30-minute meal period when working more than five hours and paid 10-minute rest periods based on hours worked, subject to applicable rules and exceptions.
Can my employer retaliate against me for speaking up?
California law protects employees from retaliation for many types of legally protected activity, such as asserting certain wage rights, reporting suspected legal violations, or exercising other protected workplace rights.
What should I do if I think my workplace rights have been violated?
Document what is happening and preserve relevant emails, text messages, paystubs, schedules, workplace policies, performance reviews, and other communications. Because different employment claims have different deadlines, consider speaking with an experienced California employment attorney about your particular circumstances.
Sources & Resources
The information in this article is based primarily on official California government resources:
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. California employment laws are fact-specific and may change. The application of any law depends on the particular circumstances involved. Reading this article does not create an attorney-client relationship.
Disclaimer: Gomerman | Bourn & Associates does not represent any party involved in this collision. We are reporting on it based on statements from the Hayward Police Department and local news coverage.
Quick Answer: A 62-year-old bicyclist died after a collision with a vehicle near the intersection of Harder Road and Soto Road in Hayward at approximately 12:10 a.m. on August 31, 2026. The driver, a 52-year-old Hayward resident, remained at the scene and cooperated with officers. The Hayward Police Department says the investigation is ongoing, and authorities have not announced a cause or made a determination regarding fault. This post shares what authorities have reported and reviews California’s rules for safely sharing the road with bicyclists.
A 62-year-old bicyclist died following a collision with a vehicle in Hayward early Monday morning, August 31, 2026.
According to the Hayward Police Department, officers responded at approximately 12:10 a.m. to a reported collision involving a vehicle and bicyclist near the intersection of Harder Road and Soto Road.
When officers arrived, they found the bicyclist suffering from injuries related to the collision. Medical personnel transported him to a nearby hospital, where he was later pronounced deceased. His identity was being withheld pending notification of his family and formal identification by the Alameda County Coroner’s Office.
Our thoughts are with his family, friends, and everyone affected by this loss.
Key Takeaways
A 62-year-old bicyclist died after a collision with a vehicle near Harder Road and Soto Road in Hayward on August 31, 2026.
The driver, a 52-year-old Hayward resident, remained at the scene and cooperated with officers. Drugs and alcohol are not currently believed to have been factors.
The investigation remains ongoing, and authorities have not publicly announced what caused the collision or made a determination regarding fault.
Under California law, drivers generally must give bicyclists at least three feet of clearance when passing (Cal. Veh. Code § 21760).
Anyone with information can contact the Hayward Police Department Traffic Bureau at 510-293-7066 (case number 2026-048356).
What We Know About the Collision
Hayward Police reported that the vehicle was being driven by a 52-year-old Hayward resident. The driver remained at the scene, cooperated with officers, and provided a statement regarding the collision.
Police have also stated that drugs and alcohol are not currently believed to have been factors in the crash.
The San Francisco Chronicle and NBC Bay Area similarly reported that the bicyclist was transported to a hospital following the collision and later died from his injuries.
Importantly, the investigation remains ongoing. At this time, authorities have not publicly announced what caused the collision or made a determination regarding fault. We believe it is important not to speculate while investigators continue their work.
According to Hayward Police, this was the city’s fourth fatal traffic collision of 2026. Anyone with information about the incident is being asked to contact the Hayward Police Department Traffic Bureau at 510-293-7066. The case number is 2026-048356.
As Hayward Police continue investigating this collision, we extend our condolences to the bicyclist’s loved ones and encourage everyone traveling California’s roads to slow down, stay alert, and look out for one another.
Drivers and Bicyclists Share California’s Roads
California law generally requires drivers to give bicyclists at least three feet of clearance when passing.
This tragedy is also an important reminder that bicyclists are among the most vulnerable people on our roads.
Under California’s rules of the road, bicyclists generally have the same rights and responsibilities as other drivers. Drivers need to remain aware that bicycles may be traveling alongside them, approaching an intersection, or temporarily occupying a travel lane.
The California DMV instructs motorists to check for bicyclists before changing lanes or entering traffic and to be particularly mindful of blind spots. When overtaking a bicyclist traveling in the same direction and in the same lane, a motorist must change into another available lane when doing so is practicable and permitted by law. Cal. Veh. Code § 21760(c). California law also generally prohibits motorists from passing a bicyclist with less than three feet of clearance between any part of the vehicle and the bicycle or its operator. Id. If traffic or roadway conditions make compliance with the three-foot requirement impossible, the driver must slow to a reasonable and prudent speed and may pass only when doing so would not endanger the bicyclist. Id. § 21760(d).
These aren’t simply technical rules of the road. They are precautions that can save someone’s life.
A Few Seconds of Caution Can Make a Difference
Whether we are driving, cycling, or walking, everyone deserves to make it home safely.
For drivers, that means slowing down, paying attention at intersections, checking mirrors and blind spots, avoiding distractions, and giving bicyclists enough room when passing.
For bicyclists, visibility is especially important at night. The California DMV advises bicyclists to use required lighting and reflectors after dark, ride in the same direction as traffic, obey traffic signals and right-of-way rules, and position themselves where motorists can see them.
No appointment, text message, commute, or destination is worth someone’s life. A few additional seconds of patience behind the wheel can make all the difference.
When a Bicycle Collision Causes a Serious Injury or Death
When a vehicle and bicycle collide, determining exactly what happened can require a careful investigation. Police reports, witness statements, photographs or video, vehicle damage, roadway conditions, physical evidence, and other information may all become important.
Families dealing with a fatal collision are often trying to understand what happened while simultaneously grieving an unimaginable loss.
Share the road. Give bicyclists space. Stay alert. Get home safely.
At Gomerman | Bourn & Associates, our personal injury attorneys represent people and families who have been seriously harmed because of the negligence of others. We understand that behind every collision report and headline is a real person, a family, and a community affected by what happened.
This article is provided for informational purposes only and does not constitute legal advice. Every case is different, and past results do not guarantee future outcomes.
Quick Answer: Labor Day honors American workers and the labor movement that fought for better wages, reasonable hours, and safer workplaces. It grew from a workers’ parade in New York City on September 5, 1882 and became a federal holiday in 1894. More than 140 years later, California and federal laws still protect employees from discrimination, harassment, retaliation, and wrongful termination.
For many of us, Labor Day marks the unofficial end of summer. It means a three-day weekend, barbecues, family gatherings, and maybe one last trip before fall begins.
But Labor Day was not created because Americans needed another day off.
It was created to recognize American workers and the contributions they have made to our country. Its history is also closely connected to the labor movement and the generations of workers who pushed for better wages, reasonable hours, safer workplaces, and greater dignity on the job. (Department of Labor)
At Gomerman | Bourn & Associates, we represent employees when their rights in the workplace have been violated. So, as we recognize Labor Day, we think it is worth remembering how the holiday began and why its history still matters to workers today.
Key Takeaways
The first Labor Day was celebrated with a workers’ parade in New York City on September 5, 1882.
Labor Day became a federal holiday in 1894, when President Grover Cleveland signed it into law.
The holiday grew out of the labor movement’s push for better wages, reasonable hours, and safer workplaces.
California gives employees some of the strongest workplace protections in the country, covering discrimination, harassment, retaliation, wrongful termination, wage-and-hour violations, and protected leave.
If you believe your workplace rights were violated, document what happened and speak with an employment attorney, because deadlines can apply.
Where Did Labor Day Come From?
To understand Labor Day, we have to go back to the late 1800s.
This was a very different time for American workers. The labor movement was growing, and workers across the country were organizing and demanding better working conditions.
The first Labor Day celebration took place in New York City on September 5, 1882. Organized by the Central Labor Union, the event included a parade of workers followed by a celebration for workers and their families. Estimates of participation in that first parade range from approximately 10,000 to 20,000 marchers, with thousands more joining the festivities afterward. (Department of Labor)
Even the question of who first came up with Labor Day has an interesting history.
For years, labor leader Peter J. McGuire, a co-founder of what would become the American Federation of Labor, received much of the credit. However, historical research has also pointed to machinist and union leader Matthew Maguire as possibly being the person who originally proposed the holiday. The U.S. Department of Labor recognizes that both men have credible claims to its creation. (Department of Labor)
Regardless of who deserves the credit, the idea caught on.
States began formally recognizing Labor Day during the 1880s. Oregon became the first state to pass a law recognizing the holiday in 1887. By 1894, many other states had followed. (Department of Labor)
1894 Was a Turning Point
Labor Day became a federal holiday during an especially turbulent period in American labor history.
In 1894, workers associated with the Pullman Strike became involved in a major nationwide railroad dispute. The federal government intervened, troops were deployed, and the conflict turned violent. The Pullman Strike became one of the defining labor disputes of the era. (Research Guides)
That same year, Congress passed legislation establishing Labor Day as a legal holiday. On June 28, 1894, President Grover Cleveland signed the legislation establishing the first Monday in September as Labor Day. (Department of Labor)
What began as workers marching through the streets of New York City had become a national holiday.
1882First Labor Day celebration, in New York City
1894Labor Day became a federal holiday
140+Years later, protecting workers’ rights still matters
California and federal laws protect employees across every industry.
The Workplace Has Changed. The Need for Worker Protections Has Not.
Thankfully, the American workplace looks very different today than it did in 1882.
Over generations, workers, advocates, lawmakers, unions, and others have fought for changes that fundamentally reshaped the workplace.
But progress does not mean workplace problems disappeared.
Employees still come to us because they believe they were fired after reporting discrimination. Others believe they were retaliated against after complaining about harassment or unlawful conduct. Some are struggling to receive legally protected leave or reasonable accommodations. Others believe they are being treated differently because of a protected characteristic.
The circumstances may look different from the labor disputes of the nineteenth century, but there is an important connection between then and now:
Employees should be able to work with dignity and without having to sacrifice their legal rights to keep their jobs.
Knowing Your Rights Matters
California provides employees with some of the strongest workplace protections in the country.
Depending on the circumstances, California and federal laws may protect employees from discrimination, harassment, retaliation, wrongful termination, wage-and-hour violations, and interference with certain protected leaves. Employees may also have protections when they report conduct they reasonably believe is unlawful or exercise other legally protected rights.
Having a workplace right on paper, however, does not necessarily mean an employer will always respect it.
That is why employees should pay attention when something does not feel right.
If you believe your employer is retaliating against you, document what is happening. Save relevant emails, text messages, performance reviews, disciplinary notices, and other communications when legally appropriate. Keep track of important dates and conversations. And if you believe your rights may have been violated, consider speaking with an employment attorney sooner rather than later.
Deadlines can apply to employment claims, and waiting too long can affect your legal options.
Frequently Asked Questions
When did Labor Day become a federal holiday?
On June 28, 1894, President Grover Cleveland signed legislation establishing the first Monday in September as Labor Day.
Where and when was the first Labor Day celebration held?
The first Labor Day celebration took place in New York City on September 5, 1882. It was organized by the Central Labor Union and included a parade of workers followed by a celebration for workers and their families.
Who created Labor Day?
Both labor leader Peter J. McGuire and machinist and union leader Matthew Maguire have credible claims. The U.S. Department of Labor recognizes that both men may have proposed the holiday.
What workplace rights do California employees have?
Depending on the circumstances, California and federal laws may protect employees from discrimination, harassment, retaliation, wrongful termination, wage-and-hour violations, and interference with certain protected leaves.
This Labor Day, Remember What We Are Actually Celebrating
Enjoy the barbecue. Take the long weekend. Spend time with your family and friends.
But somewhere between the last summer trip and the start of fall, take a moment to remember why we have Labor Day in the first place.
More than 140 years ago, workers marched through New York City because they believed the contributions of working people deserved to be recognized.
They were right.
Labor Day is a celebration of the people who show up every day and keep our communities, businesses, and economy moving. It is also a reminder that many of the workplace protections we now take for granted came from generations of people willing to advocate for change.
At Gomerman | Bourn & Associates, we are proud to represent California employees and stand up for workers when their rights have been violated.
Because respecting workers should not be something we think about only on Labor Day.
If you believe your employer has violated your workplace rights, Gomerman | Bourn & Associates represents employees throughout California in employment law matters. Contact our office to learn more about your legal options.
This article is provided for informational purposes only and does not constitute legal advice. Every employment matter is different, and you should consult with an attorney regarding your individual circumstances.
Understanding Your Leave Rights as a California Employee
Quick Answer: FMLA and CFRA both give eligible California employees up to 12 weeks of unpaid, job-protected leave in a 12-month period, but CFRA often protects more workers. CFRA applies to employers with as few as five employees (FMLA generally requires 50 or more), and it covers a broader range of family relationships. Pregnancy is handled differently, and combining Pregnancy Disability Leave with CFRA bonding leave can provide significantly more time around the birth of a child. If your employer denies your leave or retaliates against you for taking it, you may have claims under California employment law.
When you’re dealing with a serious health condition, a family emergency, or welcoming a new child, taking time away from work may not really be a choice.
Both federal and California law provide job-protected leave in many situations. What many employees don’t realize is that the California Family Rights Act (CFRA) often provides broader protections than the federal Family and Medical Leave Act (FMLA).
If your employer denies your leave, discourages you from taking it, or retaliates against you for exercising your rights, you may have legal claims under California employment law.
Key Takeaways
Both FMLA (federal) and CFRA (California) provide up to 12 weeks of unpaid, job-protected leave in a 12-month period.
CFRA applies to employers with as few as five employees; FMLA generally requires 50 or more within a 75-mile radius.
CFRA covers a broader range of family members, including domestic partners, grandparents, siblings, parents-in-law, and a designated person.
Pregnancy is handled through Pregnancy Disability Leave (up to four months) plus CFRA bonding leave, which can total roughly seven months, far more than FMLA alone.
If your employer denies, discourages, or retaliates over protected leave, you may have claims, and employment deadlines make acting promptly important.
What Is the FMLA?
The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take up to 12 weeks of unpaid, job-protected leave during a 12-month period for qualifying reasons, including:
A serious health condition that prevents the employee from working
Caring for a spouse, child, or parent with a serious health condition
Bonding with a new child following birth, adoption, or foster placement
Certain military-related family circumstances
Qualified employees are generally entitled to return to the same or an equivalent position when their leave ends. FMLA also requires employers to maintain group health benefits during the leave period.
What Is the CFRA?
The California Family Rights Act (CFRA) is California’s state leave law. Like FMLA, it provides eligible employees with up to 12 weeks of unpaid, job-protected leave in a 12-month period.
The difference is that CFRA covers more employees and recognizes a broader range of family relationships. In many situations, that means stronger protections for California workers.
Key Differences Between FMLA and CFRA
Feature
FMLA (federal)
CFRA (California)
Employer size
50 or more employees within a 75-mile radius
As few as five employees
Length of leave
Up to 12 weeks in a 12-month period
Up to 12 weeks in a 12-month period
Family members covered
Spouse, parent, child
Also domestic partners, grandparents, grandchildren, siblings, parents-in-law, and a designated person
Pregnancy
Pregnancy leave counts toward the 12 weeks
Pregnancy disability is handled separately through PDL (up to four months), plus CFRA bonding leave
Eligibility
12 months and 1,250 hours worked, plus a 75-mile worksite-size rule
12 months and 1,250 hours worked, with no worksite-size rule
1. Employer Coverage
One of the biggest differences is the size of the employer required to provide protected leave.
FMLA: Generally applies to employers with 50 or more employees within a 75-mile radius.
CFRA: Applies to employers with as few as five employees.
So, even if you work for a smaller California employer and aren’t protected by FMLA, you may still qualify for CFRA leave.
A note for employees at smaller companies: If your employer has between 5 and 19 employees, California’s Civil Rights Department offers a small-employer mediation program. In most cases, an employee at a company this size must go through CRD mediation before filing a civil lawsuit over a CFRA violation.
2. Family Members Covered
Another important difference is who you can take protected leave to care for.
FMLA Generally Covers:
Spouse
Parent
Child
CFRA Additionally Covers:
Domestic partners
Grandparents
Grandchildren
Siblings
Parents-in-law
A designated person with a family-like relationship
That broader definition can make a big difference when someone you love has a serious medical condition.
There is one important limitation. California law generally allows an employee to identify only one designated person per 12-month period. Once you’ve named that person for CFRA purposes, you typically can’t substitute someone else until the next 12-month period begins.
3. Pregnancy-Related Leave
FMLA and CFRA don’t necessarily handle pregnancy the same way.
Under California law, pregnancy disability is primarily addressed through Pregnancy Disability Leave (PDL) rather than CFRA. Because of that distinction, some employees may be entitled to additional protected leave.
What can that look like in real life?
PDL provides up to four months of leave for pregnancy-related disability, while CFRA separately provides up to 12 weeks of bonding leave after birth.
Combined, an eligible employee could potentially receive roughly seven months of job-protected leave surrounding the birth of a child, significantly more than the 12 weeks available under FMLA alone.
The exact amount depends on individual circumstances, including the healthcare provider’s certification, so employees should confirm their specific timeline with an attorney or HR department.
4. Employee Eligibility Requirements
Both laws generally require employees to:
Have worked for the employer for at least 12 months
Have worked at least 1,250 hours during the previous 12 months
FMLA also has a worksite-size requirement tied to the employer’s workforce within a 75-mile radius. CFRA does not.
12 weeksUnpaid, job-protected leave under both FMLA and CFRA (in a 12-month period)
5Employees is enough for CFRA to apply; FMLA generally needs 50 or more
~7 monthsPotential combined job-protected leave around a birth (PDL plus CFRA bonding)
Confused about how much protected leave you’re entitled to? These laws overlap in complicated ways, and employers get it wrong.
When an employee qualifies under both laws, FMLA and CFRA leave frequently run at the same time. But they don’t always perfectly overlap because the laws cover different family relationships and handle pregnancy-related leave differently.
The interaction between FMLA, CFRA, Pregnancy Disability Leave, and California Paid Family Leave can become complicated, and employers sometimes make mistakes when calculating how much leave an employee has available.
Common Leave Violations We See
Unfortunately, some employers don’t follow their legal obligations when an employee needs protected leave.
Common violations include:
Improperly denying leave
Refusing to recognize CFRA coverage
Requiring employees to return prematurely
Terminating or demoting employees for taking protected leave
Reducing hours or responsibilities in retaliation for leave use
Harassing employees who request medical or family leave
California law prohibits employers from interfering with protected leave rights or retaliating against employees who exercise those rights.
These situations can also overlap with disability discrimination claims under California’s Fair Employment and Housing Act (FEHA) and, in some cases, the federal Americans with Disabilities Act (ADA).
Those laws require employers to provide reasonable accommodations and engage in a good-faith interactive process, separate from any leave entitlement. If your situation involves a disability or medical condition, it’s worth having an attorney evaluate both your leave and accommodation rights.
Signs Your Rights May Have Been Violated
You may want to speak with an employment attorney if:
Your leave was denied despite meeting eligibility requirements
Your employer discouraged you from taking leave
You were disciplined shortly after requesting leave
Your position wasn’t restored after your leave
You experienced retaliation after taking medical or family leave
Your employer claimed you were ineligible without clearly explaining why
Retaliation doesn’t always have to be obvious. Even subtle forms of retaliation can violate California employment laws.
What Should You Do If Your Employer Violates Your Leave Rights?
If you believe your employer interfered with your FMLA or CFRA rights:
Save emails, texts, and written communications relating to your leave.
Keep copies of medical certifications and leave requests.
Document conversations with supervisors and HR.
Consult an experienced California employment attorney as soon as possible.
Employment claims often involve important deadlines, so acting promptly can help preserve your rights.
Frequently Asked Questions
What is the difference between FMLA and CFRA?
Both laws provide eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period. The main differences are that CFRA applies to much smaller employers (as few as five employees, versus 50 or more for FMLA), recognizes a broader range of family relationships, and handles pregnancy-related leave differently.
Does CFRA apply to small employers in California?
Yes. CFRA applies to employers with as few as five employees. If your employer has between 5 and 19 employees, you generally must go through the Civil Rights Department’s small-employer mediation program before filing a civil lawsuit over a CFRA violation.
Can FMLA and CFRA run at the same time?
Often, yes. When an employee qualifies under both laws, the leave frequently runs concurrently. But they don’t always perfectly overlap, because the two laws cover different family relationships and handle pregnancy-related leave differently.
How much leave can I get around a pregnancy in California?
Pregnancy Disability Leave provides up to four months for pregnancy-related disability, and CFRA separately provides up to 12 weeks of bonding leave after birth. Combined, an eligible employee could potentially receive roughly seven months of job-protected leave around the birth of a child, though the exact amount depends on individual circumstances.
What should I do if my employer violates my leave rights?
Save emails, texts, and other written communications about your leave, keep copies of medical certifications and leave requests, document conversations with supervisors and HR, and consult an experienced California employment attorney as soon as possible, because employment claims often involve important deadlines.
If your employer denied protected leave, retaliated against you for taking leave, or terminated your employment after you requested leave, our team can evaluate what happened and explain your legal options.
You shouldn’t have to choose between caring for yourself or your family and keeping your job.
Contact Gomerman | Bourn & Associates today for a confidential consultation to discuss your rights under CFRA, FMLA, and California employment law.
You shouldn’t have to choose between caring for yourself or your family and keeping your job. Talk to a team that handles California leave claims.
This article is for general informational purposes only and does not constitute legal advice. Every situation is different. Please consult a licensed California employment attorney about your specific circumstances.
