Can California Employees be held Personally Liable for Violations of Employment Laws?

Generally, employees can be held personally liable for conduct that is outside the scope of their employment.  This includes, unlawful harassment on the basis of any of the protected characteristics under federal and state law, such as, sexual or racial harassment; intentional conduct, such as, assault, battery, intentional misrepresentation (fraud), intentional interference with contract, misappropriation of trade secrets; or aiding and abetting. Employees cannot be held personally liable for discrimination, retaliation, negligence or wrongful termination claims, however, if the overlapping evidence can provide support individually for both harassment and discrimination claims, then the jury could find personal liability against the employee who engaged in the conduct.

On October 11, 2015, California Governor Jerry Brown signed into law the “A Fair Day’s Pay Act,” which expands liability for willful wage and hour violations to owners, directors, officers, and managing agents of the employer. Any employer or “other person acting on behalf of an employer” “may be held liable as the employer for” violations of the directives in the California Wage Orders and in various provisions of the California Labor Code. Thus, the Labor Commissioner may now hold individuals liable for certain wage and hour violations, including California’s big six: unpaid overtime, unpaid minimum wage, denied meal/rest breaks, untimely termination compensation, inadequate wage statements, and failure to reimburse for employee business expenses.

An employee can only be held personally liable for punitive damages if s/he is an officer, director, or a “managing agent” which requires much more than just acting as a supervisor.

Lisa Sherman
California Labor & Employment Attorney