Employment Litigation

Once a claim is filed, whether it's a Labor Commissioner complaint, a FEHA lawsuit, or a PAGA notice, the employer's options narrow and the clock starts running on real deadlines. TencerSherman LLP defends employers through all of it: administrative hearings, state and federal court litigation, and PAGA actions, aiming for the fastest resolution that actually protects the business rather than treating every claim as a fight to the finish.

Wrongful termination claims

California employment is at-will by default, but a termination becomes wrongful when it falls into one of several recognized exceptions. The most common:

FEHA violations. Termination motivated by a protected characteristic, or in retaliation for opposing discrimination or harassment, or for requesting a disability accommodation.

Tameny claims. California recognizes a common-law tort for wrongful termination in violation of public policy, from the 1980 case Tameny v. Atlantic Richfield Co. This covers terminations that violate a public policy grounded in a statute or constitutional provision, even outside FEHA specifically, for example, firing someone for refusing to commit an illegal act.

Whistleblower retaliation. A termination that follows an employee's report of suspected legal violations, whether reported internally or to a government agency, under Labor Code section 1102.5. These claims often get pleaded alongside a parallel Tameny claim to maximize the plaintiff's theories of liability.

Retaliation for wage claims. Labor Code section 98.6 protects an employee who files a wage claim or Labor Commissioner complaint. Since a 2024 amendment (SB 497), an adverse action taken within 90 days of that kind of protected activity creates a rebuttable presumption that it was retaliatory, meaning the employer has to affirmatively show the action was unrelated rather than the employee having to prove it wasn't.

Discrimination, harassment, and retaliation claims

These typically proceed through the California Civil Rights Department (CRD, formerly DFEH) before reaching court: the employee files a complaint with the CRD within three years of the alleged act, then either requests an immediate right-to-sue notice or waits for the CRD to investigate. Once the right-to-sue notice issues, the employee has one year to file a civil lawsuit. Whether that administrative process was actually followed, and followed within the deadlines, is often one of the first things worth checking when a FEHA lawsuit lands.

Damages in a successful FEHA case can include back pay, front pay, emotional distress damages, and, where the employer's conduct meets the malice, oppression, or fraud standard, punitive damages. FEHA also allows the prevailing employee to recover attorney's fees, which changes the settlement calculus considerably compared to claims where each side bears its own costs.

Labor Commissioner claims

Wage claims frequently start at the Labor Commissioner's Office (the Division of Labor Standards Enforcement) rather than in court, through an administrative hearing sometimes called a Berman hearing. TencerSherman represents employers at the conference and hearing stages, presenting the employer's position on unpaid wages, meal and rest period premiums, overtime miscalculations, or wage statement claims before an ALJ, and, where necessary, on any subsequent appeal to superior court.

PAGA litigation after the 2024 reforms

The 2024 reforms to California's Private Attorneys General Act (AB 2288 and SB 92) changed the litigation landscape for any PAGA notice filed on or after June 19, 2024, which by now is most active cases. A few changes matter most for defense strategy:

Standing requires personal experience of the violation. A plaintiff can no longer bring a representative claim covering violations they personally didn't experience, which narrows the scope of many PAGA notices from the outset.

Expanded cure provisions. Violations of Labor Code sections 226 (wage statements), 226.7 (meal and rest period premiums), 510 (overtime), and 2802 (expense reimbursement) can now be cured, categories that used to be largely off-limits to the cure process and that account for a large share of PAGA claims generally. Curing a violation before or during litigation can significantly reduce exposure.

Tiered penalties. The default penalty remains $100 per employee per pay period, but drops to $50 for a violation shown to be isolated and non-recurring. The higher $200 tier now requires either a prior agency or court finding that the specific policy was unlawful, or a judicial finding that the employer's conduct was malicious, fraudulent, or oppressive, the same standard used for punitive damages elsewhere in California law.

Judicial narrowing authority. Courts can now limit the evidence presented or otherwise narrow the scope of a PAGA claim to keep it manageable for trial, which gives defense counsel a real tool against sprawling claims that cover years of alleged violations across an entire workforce.

Whether curing a violation early, challenging standing, or arguing for narrowing makes the most sense depends heavily on the specific claim and how far along it already is. See the employment advice page for how these same provisions work as a proactive compliance tool before a PAGA notice ever arrives.

Frequently asked questions