Click here to subscribe to our Bowles Law e-letter
Click here to subscribe to our Bowles Law e-letter
This phenomenon is only likely to accelerate, demanding that management ensure workplace policies and protocols are up-to-date compliant, with worker complaints addressed professionally and resolutions thoroughly documented. In the event of an AI-fueled groundless or inflated legal action, an employer will thus have maximum possible materials in defense.
Picture the HR director in receipt of this email:
Dear Ms. Smith:
After my more than five years of excellent work, you abruptly and cruelly fired me yesterday. You said I was discharged over some reports of my sexually harassing a younger female co-worker. No way. We were just talking. She liked me.
The timing tells the real story. The day before, I told you I had a headache and needed to leave early. Clearly, the proffered harassment rationale is a pretext for disability-based discrimination and retaliation under the Americans with Disabilities Act and California’s Fair Employment and Housing Act.
California law gives real force to these protections. In Brown v. State, 41 Cal.4th 620 (2007), the California Supreme Court recognized the law protects qualified employees with disabilities. Cousins v. Bethlehem Steel, 23 Cal.4th 612 (2000) confirms that an employer’s asserted legitimate reason may be challenged as pretext. Franks v. Department of Commerce, 37 Cal.4th 210 (2005) underscores that such issues require serious, evidence-based analysis—not a convenient after-the-fact explanation for an unlawful discharge.
To resolve this without litigation, I demand payment of $100,000 by next Thursday at 5:00 p.m. Otherwise, I will file suit on Friday and go to trial seeking a minimum of $5,000,000.
Sincerely,
Joe Jones
***
Those three case decisions are fake. Mr. Jones’s analysis is seemingly plausible only because he plugged in a stilted, false narrative into his chatbox. Yet, this is small comfort to company management having to hire expensive defense counsel to fight an “AI-armed” do-it-yourself litigant, ready to exact revenge by filing push-button motions and other papers until he can extricate an extortionate sum on settlement.
While the scenario is fictitious, the spread of “pro se” (self-represented) plaintiffs suing their former employers aided by spurious AI memos and maneuvers is very real. See, AI Hallucination Cases Database – Damien Charlotin (currently counting 1,459 identified cases worldwide with generative AI produced hallucinated content).
From Kristin White, Fisher Phillips lawyer:
“There’s not really the option of a nuisance settlement, because for these individuals it’s hundreds of thousands of dollars to make them go away … So you have to litigate, and you have to be aggressive.”
From “The ChatGPT Plaintiff: How AI Is Transforming Employment Litigation, Driving Up Defense Costs, and What In-House Counsel Can Do About It | Fisher Phillips LLP” (Feb. 26, 2026)
Take-Aways:
This phenomenon is only likely to accelerate, demanding that management ensure workplace policies and protocols are up-to-date compliant, with worker complaints addressed professionally and resolutions thoroughly documented. In the event of an AI-fueled groundless or inflated legal action, an employer will thus have maximum possible materials in defense.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
● Retaliation Red Flags - Best Practices to Prevent Claims (April 17, 2026)
● File Flaws - Top Five Personnel File Errors (April 9, 2026)
● 72 Million Reasons Not to Mess With Women - Employer Agrees to End Widespread Sex Discrimination (February 16, 2024)
Tim Bowles
May 22, 2026
“Reverse discrimination” is a variant of religious discrimination. Reverse discrimination means a plaintiff asserts the employer wrongfully discriminated against him/her because plaintiff did not adhere to the employer’s religious beliefs. In reverse discrimination cases, the plaintiff claims religious discrimination based on the religious beliefs of the employer, and the fact that the employee does not share those beliefs. The plaintiff claims his/her lack of adherence to the religious beli
“Reverse discrimination” is a variant of religious discrimination. Reverse discrimination means a plaintiff asserts the employer wrongfully discriminated against him/her because plaintiff did not adhere to the employer’s religious beliefs. In reverse discrimination cases, the plaintiff claims religious discrimination based on the religious beliefs of the employer, and the fact that the employee does not share those beliefs. The plaintiff claims his/her lack of adherence to the religious beliefs promoted by company management was what led to the unlawful discrimination the plaintiff later faced. To establish this claim, plaintiff has the burden of proving all of the following: (1) plaintiff was subjected to some adverse employment action; (2) at the time the adverse employment action was taken, plaintiff’s job performance was satisfactory; and (3) plaintiff can show some additional evidence to support the inference that the employment action was taken because of a discriminatory motive based upon plaintiff’s failure to hold or follow his/her employer’s religious beliefs.
In Venters v. City of Delphi, the plaintiff was able to prove she was wrongfully discriminated against based on this theory of “reverse discrimination.” Plaintiff’s supervisor gave plaintiff a bible and other religious materials and then told her she would no longer work at that company unless she started going to church and following God’s way. The supervisor asserted plaintiff practiced incest and bestiality and she should commit suicide. Plaintiff asked supervisor to stop but he continued making similar statements. After her termination, plaintiff sued for religiously motivated discharge.
The court noted that her claim was not that her employer refused to accommodate her religious practices, but that her employer discharged her because she did not measure up to her supervisor’s religious expectations. Plaintiff’s supervisor didn’t simply share his religious beliefs with her; instead he made it clear if she did not conform to those views she would be discharged. The court determined under these circumstances of religion in the workplace, the plaintiff need only show that her perceived religious shortcomings played a motivating role in her discharge. The court concluded plaintiff had a right to work without being compelled to submit herself to her supervisor’s religious scrutiny.
We all agree disruptive workplace incidents distract from harmony and productivity. One of the more prevalent and sometimes inadequately addressed workplace disruptions concerns rude, boorish employees. Their bullying can include personal insults, verbal attacks, inappropriate teasing and sarcasm, belittling another’s intelligence or capabilities, and maligning someone’s reputation through gossip and rumor-mongering.
We all agree disruptive workplace incidents distract from harmony and productivity. One of the more prevalent and sometimes inadequately addressed workplace disruptions concerns rude, boorish employees. Their bullying can include personal insults, verbal attacks, inappropriate teasing and sarcasm, belittling another’s intelligence or capabilities, and maligning someone’s reputation through gossip and rumor-mongering.
Is Rude Workplace Behavior Unlawful? Although California has adopted anti-harassment laws, it has yet to enact “civility” laws. Several states have attempted such regulation, including California’s unsuccessful Healthy Workplace Bill of 2003. By declaring all abusive workplace conduct unlawful, such bills seek broader protection for employees facing workplace harassment, regardless of whether the abuse was directed to an employee belonging to a protected classification (race, gender, national origin, religion, etc.). Even without such formal prohibitions, employers may be at risk for ignoring bullying behavior.
Potential Legal Theories Targeting Workplace Bullying: Although there is no anti-bullying law in California per se, affected co-workers have filed claims under the protection of the Americans with Disabilities Act (ADA) and/or workers’ compensation laws claiming such bullying created stress and anxiety. Employees targeted by bullies have also sued employers for damages for the intentional infliction of emotional distress allegedly caused by such bullying incidents. Employee suits alleging such harassment was linked to a protected classification are also common. In EEOC v. Nat’l Educ. Ass’n, a male allegedly acted in a particularly obnoxious fashion towards his female subordinates, often screaming profanities and physically intimidating them, while reportedly treating his male subordinates in a more playful, bantering fashion. The court found harassing conduct need not be motivated by sexual desire to support an inference of sexual discrimination. Even if the bully’s target is of the same gender, the victim might successfully sue for unlawful sex harassment. In Singleton v. United States Gypsum Co., John Singleton’s male co-workers allegedly engaged in workplace bullying by insults and sexually explicit gestures and comments. The appellate court found Singleton could have been harassed because of gender, even though the alleged workplace bullies were also male.
How to Resolve Co-Workers’ Complaints: The wrong thing to do is ignore such a situation. Granted, it’s logical to presume all workers are mature, responsible adults. However, even where the bullying in the workplace does not seem based on some protected classification (age, religion, national origin, etc.), don’t just assume people can and should work these matters out by themselves. Treat these bullies in the workplace complaints just as seriously as a claim for sexual harassment or other harassment on a protected classification. Investigate in a thorough and neutral manner with the intention of truly addressing and handling the problem.
How to Confront the Bully: Of course, do not overreach to unnecessarily documenting the accused wrongdoer’s every shortcoming, big, small, or microscopic. The person in question could later attempt to characterize over-documenting as attempts to create false grounds for terminating him or her. The best approach is to ensure workplace policies clearly state what code of conduct is expected at the workplace, including how workers are to behave with one another. If an employer finds an individual has crossed the line and is potentially engaging in office bullying, show him or her the appropriate workplace policy, discuss the resolution, and discipline and document accordingly. Any resolution should include the appropriate corrective training. Always apply company policies consistently and fairly: don’t single out certain individuals for bullying behavior while ignoring others.
Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours. As paid vacation benefits are considered wages, such pay must be included in the employee’s final paycheck with the appropriate deductions. The employer must pay out accrued but unused vacation at the employee’s final rate of pay, regardless of the rate of pay at which i
Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours. As paid vacation benefits are considered wages, such pay must be included in the employee’s final paycheck with the appropriate deductions. The employer must pay out accrued but unused vacation at the employee’s final rate of pay, regardless of the rate of pay at which it was earned. For example, if the employee earned ten hours of vacation while making $15 per hour and who later is terminated or quits while making $20 per hour must receive $200 in vacation wages with the employee’s final paycheck. See California Labor Code Section 227.3.
No “Use it or Lose It”: In California, vacation pay is another form of wages which vests as the employee earns it. Vests means the employee has lawfully earned the wages. Accordingly, it is illegal to deny an employee earned vacation pay not used by a specified date (“use it or lose it”) under California law.
California’s Division of Labor Standards Enforcement (DLSE) has repeatedly found policies requiring all vacation taken in the year it is earned (or in a very limited period following the accrual period) are unfair and unenforceable.
However, the DLSE does recognize vacation accrual policies which cap how much vacation time may continue to accrue. Thus, a sample vacation policy in an employee handbook might state, “The maximum vacation benefit for which an employee is eligible at any point is one and one-half year’s vacation pay at the employee’s current yearly accrual rate. Once that maximum has accrued, no further vacation time or benefit will accrue until the employee has used some of the time, reducing the total time available below the current maximum. At such time, the employee resumes accrual of vacation time up to a point where the maximum is again reached.”
Employers may also refuse to pay employees with money in lieu of vacation time, except upon termination of employment.
Under California law, if an employer requires an hourly California employee to attend an out-of-town business meeting, training session, or any other event, the employer is obligated to pay for the employee’s time getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from the out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is
Under California law, if an employer requires an hourly California employee to attend an out-of-town business meeting, training session, or any other event, the employer is obligated to pay for the employee’s time getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from the out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is, under such circumstances, time spent carrying out the employer’s directives, and thus, is characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable “hours worked.”
On the other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with the traveling or making necessary travel connections, is not compensable.
For local work assignments, when an employee is intermittently required to report directly from home to a work site other than the company’s office, the employer must pay the employee travel time for any time in excess of the employee’s normal commute time to and from the regular site. If an employee is routinely directed to report to one outside work site or a succession of them (or to return straight from such site(s) to home at the end of the work period), then that employee’s normal commute time is the duration of each such trip [regardless if the time varies to/from home and various sites] and no such time is considered compensable work time.
The employer may establish a different pay scale for travel time (not less than minimum wage) as opposed to the regular work time rate. The employee must be informed of the different pay rate for travel before the travel begins.
With the exception of specific vehicle operating expenses (including gas, maintenance, insurance) if the company’s travel expense policy authorizes an adequate “per mile” rate for such operations (as set by the IRS), the company’s travel policy must also reimburse for all out-of-pocket business-related travel expenses incurred in the course of an employee’s work time.
Bill, a hospital supervisor, learned that one of his subordinates, Harvinder, has been wearing a miniature sword strapped to and hidden underneath her clothing. Harvinder is a baptized Sikh who wears the 4-inch dull and sheathed sword (called a kirpan) as a symbol of her religious commitment to defend truth and moral values. Bill instructed Harvinder not to wear the kirpan at work because it violated hospital policy against bringing weapons in the workplace. Harvinder explained to Bill that her
Bill, a hospital supervisor, learned that one of his subordinates, Harvinder, has been wearing a miniature sword strapped to and hidden underneath her clothing. Harvinder is a baptized Sikh who wears the 4-inch dull and sheathed sword (called a kirpan) as a symbol of her religious commitment to defend truth and moral values. Bill instructed Harvinder not to wear the kirpan at work because it violated hospital policy against bringing weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh Code of Conduct, and gave him literature explaining the kirpan is not a weapon. Harvinder also allowed Bill to examine the kirpan so he could see it was no sharper than a butter knife.
It may be surprising to learn that if Bill were then to inform Harvinder she would be terminated if she continued to wear the kirpan at work, the U.S. Equal Employment Opportunity Commission (EEOC) would consider the hospital liable for religious discrimination in the workplace. In the face of a potential conflict between a religious practice such as Harvinder’s and an employer’s policy, in this case the company’s obligation to maintain a safe and secure workplace, that employer must almost always take the initiative to see if a reasonable accommodation for that religious practice can be reached.
Only where an employer can show that any accommodation for religious practice would impose an undue economic hardship is that company excused from permitting that practice to continue. Employment laws establish that resolution of religion in the workplace issues is a case-by-case proposition. An undue hardship is found where the proposed accommodation imposed more than a de minimus (trifling or minimal) cost to the employer. Examples where courts have found accommodations imposed undue hardship include “additional costs in the form of lost efficiency or higher wages.” Balint v. Carson City, Nevada (Ninth Circuit Court of Appeals [9th Cir] 1998) 180 Federal Reporter, Third Series (F.3rd) 1047, 1051, note 4.
Thus, faced with Harvinder’s request to continue wearing her kirpan in the workplace, Bill would have to explore whether the company could accommodate the request without a disruption in operations that would amount to more than a minimal or trivial distraction. If Harvinder’s request was to carry a loaded gun based on her religion’s principles, Bill would obviously have a much easier decision since such a weapon creates a hostile work environment to say the least, nearly certain to significantly divert fellow hospital workers from full attention to their duties. However, a ceremonial object no sharper than a butter knife – and kept out of sight of other workers in any event — can probably be accommodated since it would be difficult at best to distinguish between that object and the eating utensils brought by other workers and utilized daily on the premises.
If you have any questions, please contact me or any of our other employment law attorneys.
Until California courts fully resolve the issue of what an employer must do to “provide” meal periods, employers must remain diligent to take all reasonable measures for ensuring hourly, not-exempt-from-overtime employees actually take timely meal periods. These steps could include:
Until California courts fully resolve the issue of what an employer must do to “provide” meal periods, employers must remain diligent to take all reasonable measures for ensuring hourly, not-exempt-from-overtime employees actually take timely meal periods. These steps could include:
● Conduct a thorough audit of the company’s meal and rest period policies and practices to make sure they reflect a close agreement with the applicable law, preferably with assistance of a California lawyer experienced in wage and hour law;
● Ensure all non-exempt employees read and acknowledge in writing their understanding of the company’s meal and rest period rights policy and the underlying laws;
● Determine if any exception applies for mandatory unpaid meal periods. Consult with a lawyer experienced in wage and hour law on whether the nature of an employee’s work permits a written agreement for a paid “on-duty” meal period. Ensure that any such written agreement for an “on duty” meal period specifies the nature of the work justifying the exception and confirmation the employee may, in writing, revoke the agreement at any time;
● Have supervisors and managers conduct (and document) regular monitoring to ensure employees under them are taking their meal periods and entering their unpaid meal period start and end times on time cards or sheets;
● In the event a manager finds a worker not taking the required meal period, policy and practice should direct that manager’s correction of the matter as well as documented agreement by the worker to take those periods in the future; and
● Ensure proper recordkeeping is in place and maintained (i.e. time cards showing meal period start and end times) for at least a rolling four-year period, or longer if currently engaged in litigation.
Required Postings:Per the California Chamber of Commerce’s informational web pages, California employers must conspicuously display required labor posters or notices where all employees may view them. Several of the employer posters must also be displayed where job applicants can read them (e.g. polygraph protection and state and federal anti-discrimination posters). Even if a company only has one employee, it must display these notices. Companies must post a separate set of these notices in
Required Postings: Per the California Chamber of Commerce’s informational web pages, California employers must conspicuously display required labor posters or notices where all employees may view them. Several of the employer posters must also be displayed where job applicants can read them (e.g. polygraph protection and state and federal anti-discrimination posters). Even if a company only has one employee, it must display these notices. Companies must post a separate set of these notices in each company location. Companies may be fined up to $17,000 for not posting all required notices.
The California labor posters contain the following topics:
2010 Changes to Required Postings: The following are the changes to be made to the required notices:
Required Pamphlets:
Employers must distribute seven pamphlets or notice sheets under the following conditions:
Please note: the State Disability Insurance and the Unemployment Insurance pamphlets contain new updates for 2010.
Fortunately, an “all in one poster” for 2010 containing all California and federal law posters may be purchased from the California Chamber of Commerce along with the up-to-date required pamphlets and notices at
http://www.calbizcentral.com/store/category/pages/posters.aspx.
If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth
Overview of Precise Notices California Employers Must Obtain
Overview of Precise Notices California Employers Must Obtain
Many employers find it prudent for various reasons to conduct appropriate background checks in the employee prescreening process.
Such background checks can and should be done through professional reporting agencies established to promptly check available databases. However, employers must be familiar with the frequently interlocking federal and California rules for disclosure and consent before embarking on the process. Please review our newsletter article on Pre-Employment Background Checks for an overview of the applicable federal and state laws in this area.
Per California law, background checks involve two types of consumer reports obtained from reporting agencies that provide such information: (1) consumer credit reports and (2) investigative consumer reports. Consumer credit reports are credit checks (credit worthiness, credit standing, or credit capacity) used for establishing a consumer’s eligibility for employment. Investigative consumer reports are consumer reports in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through any means, including criminal background checks.
California employers interested in obtaining consumer investigative on job applicants or employees must abide by the following precise sequence of required notices and procedures so as not to run afoul of state or federal law.
Step One: Pre-Request Written Notice and Applicant Consent. The California employer must provide written notice and obtain written consent from the job applicant before seeking the report. The pre-request notice and consent form must include a box the applicant may check if he/she wishes to receive a copy of the report.
Step Two: Written Notice to Applicant of Request of Investigative Consumer Report: Prior to obtaining an investigative consumer report, the employer must clearly and conspicuously disclose in writing to the applicant (a) that an investigative consumer report will be sought regarding his or her character, general reputation, personal characteristics and mode of living; (b) the permissible purpose of the report; (c) the name, address and telephone number of the investigative consumer reporting agency conducting the investigation; and (d) the nature and scope of the investigation requested. The employer must also provide a written summary of the consumer’s rights as prescribed by the Federal Trade Commission (FTC) and a summary of California’s parallel Investigative Consumer Reporting Agencies Act, including the applicant’s rights to inspect the agency’s file.
Step Three: Obligation to Provide a Copy of the Investigative Consumer Report: If the applicant wishes to receive a copy of the investigative consumer report, the employer (or professional agency conducting the background check on the employer’s behalf) must comply within three business days of obtaining the report.
Step Four: Employer’s Certification of Compliance to Consumer Reporting Agency: As a condition of obtaining any consumer report, an employer must certify to the reporting agency that it is seeking the report for permissible purposes and that it has complied or will comply with all requirements for notice and disclosure to the applicant.
Step Five: Notice to Applicant of Intended Adverse Action: Before an employer can deny an application based in whole or in part on any consumer report, the employer must provide the subject applicant with a copy of that report, regardless of whether or not the applicant checked the box per step one above, and a written disclosure of the applicant’s rights as prescribed by Federal and California law.
Step Six: Notice to Applicant of Adverse Action: If an employer denies employment wholly or partially on the basis of information in any consumer report – whether or not that report is “investigative” – the company must further provide “oral, written, or electronic notice” of the adverse decision as well as (a) the name, address, and telephone number of the consumer reporting agency; (b) a statement that the reporting agency did not take the adverse action and is unable to provide the applicant the specific reasons for the adverse action; and (c) notice of the applicant’s right to obtain a free copy of the pertinent report within 60 days and to dispute with the agency the accuracy or completeness of any portion of that report.
The above rules do not apply to an investigative consumer report procured or caused to be prepared by an employer if the report is sought for employment purposes due to the employer’s suspicion of wrongdoing or misconduct by the person that is the subject of the investigation.
Not all professional background check companies follow California law when conducting investigative background checks. Employers should consult legal counsel experienced in employment law for practical guidance and full protection of an employer’s rights to seek pertinent background information on key applicants. Such information may well prove invaluable in the hiring decision.
If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth