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Frequently Asked Questions About Employment Law

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What is considered an at-will employee?

According to California employment laws, an at-will employee is considered a form of employee who is hired with no specific work term, and whose employment can be terminated at any time without notice, or with notice, regardless of cause. Both the employee and the employer have the right to terminate the working relationship. It is assumed on both sides that an employee is “at-will” if there is no written or oral agreement in place that determines the length of employment or any terms of termination.

Under what circumstances can I be fired legally?

According to the Labor Code of California, the majority of employment in the state is “at will” unless otherwise specified in the work contract. This basically means that both you and your employer can terminate the work relationship at any time, without giving cause. There are some restrictions on the condition in which your employment can be terminated.
You can’t be fired as a punishment for reporting activity that is illegal or for reporting workplace harassment. You also can’t be fired for joining a labor union or refusing to perform any activity that is unlawful. Termination due to discrimination is not allowed in California.

If I am part of a union, can I still sue for wrongful termination?

In most cases, union members have their terms of employment negotiated through a memorandum of understanding (MOU) or a collective bargaining agreement (CBA). In these cases, there is typically a grievance procedure that must be followed prior to seeking relief from the court. Union members are, however, permitted to sue for wrongful termination in California.

Does an employer have to hold my job if I take a leave of absence?

If your employer qualifies as being subject to one of the legal leave laws in California and your authorized leave of absence falls under those definitions, your employer is required to hold either your current position or one with a similar pay rate and responsibilities for you until your return.

How do I determine if I am entitled to payment for overtime?

According to California employment laws, any employee not classified as exempt who works over eight hours and up to 12 hours in a single workday is entitled to overtime payment. Nonexempt employees who work on their seventh consecutive day are also entitled to the first eight hours of that time being counted as overtime. For these hours, an employee is entitled to one-and-a-half times their regular working rate. Any hours that surpass 12 hours in a single day and surpass 8 hours on the seventh consecutive day in a workweek are to be paid at double the employee’s regular rate of pay.
Exemptions: Certain employees are classified as exempt from overtime compensation. These are typically salespeople who work outside and those who have executive and administrative professional exemption classifications. These are the basic classes that fall under exemptions, but other employees may also fall under the exempted class.
In some cases, exempt employees are entitled to overtime if more than half of an employee’s time is spent on duties that are classified as nonexempt.

Are employers required to provide rest breaks?

If an employee qualifies for a rest break, according to the California Department of Industrial Relations (CDIR), they must be provided a 10-minute rest break during each four-hour work period. You may view additional details regarding the laws on rest breaks on the CDIR website.

Are employers required to provide meal breaks?

If an employee qualifies for a rest break, according to the California Department of Industrial Relations (CDIR), they must be provided a 30-minute meal break during each five-hour work period. If the total shift time equals six hours or less, there is an option to waive the meal break period. You may view additional details regarding the laws on rest breaks here on the CDIR website.

What if a meal break and rest break are not provided during the same workday?

According to the current work laws in California, an employee may be at liberty to collect two hours of pay for missed meal and work breaks that occurred in the same working day. California Labor Code Section 226.7 states that an employer must provide one hour of pay for each day in which a certain break was not provided. So, according to the code, you may be entitled to one hour for each type of break in the same workday or only one hour of pay if only one break was missed during the workday.

Will I have to pay for a meal/break case if I win?

In April and May of 2012, a ruling by the Supreme Court of California put into effect the following measures regarding rest and meal breaks:Employers must only provide the opportunity for a meal break but do not have to make sure that employees exercise the option. Employers may not pressure or provide incentives for employees to skip breaks.
In break cases, attorney fees will not be recoverable by the winning party.

Is it lawful for my employer to withhold my final wages after I’ve been fired?

According to the employment laws in California, any employee who has been discharged must be paid not only their wages but also any vacation time that has accumulated during their employment immediately at the time of employment termination.

I have a personal conflict with my supervisor, and he uses profanity while we speak – is this grounds for a harassment case?

Personality conflicts and use of profanity are not grounds for filing a lawsuit against your superior or your employer. Not only must his actions target you specifically, but they must also fall under a specific category that is protected. The California Fair Employment and Housing Act (FEHA) does not allow applicants, employees or people providing a contractual service to be harassed on the basis of certain factors. In order to be compliant, your status must fall into one of the following specific categories: physical or mental disability, national origin, gender harassment, medical condition, religious creed, marital status, ancestry, sexual orientation, color, race, age over 40 years or sex. Sex includes, but is not limited to harassment based on pregnancy, related medical conditions, childbirth or sexual harassment.

If my company only has 40 employees, is sexual harassment training required?

As of January 1, 2006, a company that has at least 50 employed persons or more is required to give a two-hour course on mandatory sexual harassment training to employees who are in supervisory positions. This mandatory course must be administered by educators or trainers who have specific expertise and knowledge in the prevention of discrimination, retaliation and prevention of harassment. These mandatory training exercises must be completed at least once every two years in order for a company to remain in compliance.
Though your company may have less than the number needed for mandatory compliance, offering sexual harassment training not only teaches those in your company who are in supervisory positions how to deal with harassment and complaints effectively, it also limits the liability that your company will face in the event of a sexual harassment lawsuit.

When can I claim discrimination?

If any of the actions you have suffered fall under the categories listed above, then you are within your right to file suit. You may also have cause to file suit if you feel that you have been demoted, fired, passed over for promotion or denied a raise based on the above parameters.

Is there a time limit for filing a claim for discrimination?

The type of claim determines the statute of limitations for filing the claim. In general, there are some types of claims that must be filed within 180 days of the last incident while others can be filed up to a year later. Speaking with me, attorney Frank Nicholas, is the best way to determine what steps to take in your case.

I quit my job. I was not fired. My employer refuses to mail me my last pay stub. What can I do?

According to Labor Section 226 of California law, any time wages are paid to an employee, a stub with nine categories of information must be issued. This includes last wages paid after an employee has been terminated or has chosen to end their employment.

Sometimes my employer pays us late – often a month or more late. What can I do?

The wage and hour law of California is basic and specific. Wages are always to be paid on time, and if an employee is not paid on time, they may be eligible for back wages. For every day that a wage payment is late, an employee is to be given one day’s wage plus interest. This is permissible for a maximum of up to 30 days.

My employer hired a male and myself, a female, for the exact same position with the same work duties. Though I have more experience, I am being paid less for the same job as my co-worker who is the opposite sex. Is this discrimination?

It is against California labor law to discriminate between sexes when considering employment or to pay unequal wages for the same job when both parties have the same skills and experience. An employer may not lower the wage of an employee to create equality. However, if there is evidence that the new employee who has been hired at a lower wage than a previous employee of the opposite sex, it may be considered an Equal Pay Act (EPA) violation.

What is the average cost of hiring a lawyer?

The majority of work-related lawyers charge on a contingency fee basis. This is usually a pre-negotiated percentage of any amounts you recover or are awarded. In this way, you are not charged a fee hourly, and you only have to pay the attorney if you fail to recover funds.

If I failed to win my harassment claim, can my employer retaliate?

Even though you have filed a claim that you have lost, you are still protected under the labor laws of California, and your employer is not allowed to take any form of retaliation in regard to your claim. The protections are in place to ensure that employees feel safe to report issues in the workplace, regardless of the outcome of their claims.

What is the benefit of joining a class action suit?

In a great many cases, a single person may have legitimate grounds to sue on an employment law claim; but, often, the total monetary value of the claim does not outweigh the cost of the action, and the claim is not pursued. In situations such as this, there is a benefit to large numbers. Joining with other co-workers to launch a suit against a single employer or cooperation via a “class action” claim in representation of all group members is an effective way to be successful. Not only does the class action movement generate the amount of compensation needed to cover the cost of litigation, but the overall claim also becomes stronger in the eyes of the law.

What is a whistleblower claim?

Both federal and California state law contain provisions for employees who “blow the whistle.” This is in reference to employees who bring to the attention of management or federal or state authorities conduct that violates public policy, fraudulent activity that harms the public, or illegal or unsafe conduct. It is common for employees to have a certain amount of fear of retaliation when choosing between reporting wrongdoing or remaining silent. If you are thinking about reporting such activity or if you are already facing retaliation in anticipation of your report, a trained lawyer can help you blow the whistle while still protecting your rights.

Can my employer retaliate against me because I am sick or disabled?

"I was recently diagnosed with a rare illness. According to my doctors, I will need to make several visits to a specialist over the next few months, but I am allowed to work as usual. I disclosed this information to my supervisor, and within a week of that conversation, my employment was terminated due to alleged performance issues. All of my evaluations prior to this date have been above average. What rights do I have in this situation?"
Qualified employees who are disabled but are able to complete their essential work-related duties are required to be given reasonable accommodations to continue their work, so long as such accommodations do not have an adverse impact on the employer’s business operations. In addition, when an employer has been contacted by the employee in regard to the disability or even if the employee is aware of the disability, the employer is obligated to exercise an affirmative duty to interactively work with said employee to best determine a way to accommodate their continued employment. If the employer opts to terminate the employment of the disabled individual in favor of someone who does not have a disability, it raises the potential for a claim of discrimination.

During an interview for a new job, the employer asked if I am disabled and what exactly my disability is. Is this type of questioning allowed?

According to the labor laws of California, before an employer makes a job offer, the employer is not allowed to ask if the applicant has a disability, what it is or whether they have any limitations. Employers are allowed to ask the applicant if he or she is able to perform the functions of the job and make the offer conditional or dependent upon a medical exam if the same requirement is extended to all those who are offered the same position.

Can my employer disclose private information?

"I am a gay female/male and have recently accepted my sexuality. I am not yet ready to disclose this information to anyone. While speaking with my supervisor, I was asked directly if I’m gay, and I confirmed that I am. At a company function a few weeks later, the same supervisor informed everyone in attendance of my sexual status. At the time, I was new to my workplace. During the event, my co-workers and supervisor not only laughed at my expense, but made several off-color jokes regarding my sexuality. Am I able to file a claim in this instance?"
There are some things that fall under a protected privacy zone, such as a person’s employment records and medical history. In general, sexual orientation will also fall in that protected zone. A privacy violation may have occurred if the person whose information was shared considers that information private. If the invasion of privacy was intensive and if the employee was harmed or suffered injury as a result of that conduct, a privacy violation may exist, and as such, a claim may be filed.

Can a prior employer defame me?

"I’ve been out of work for almost three months. After placing a few applications, a prospective employer informed me that the supervisor from my last job stated that I was let go due to stealing. Due to his statement, my application for the job was declined. The statement is completely false. Aside from simple conflicts of personality with my supervisor, I had a work record that was beyond reproach. Can action be taken due to his conduct?"
An employer that offers a misrepresentation regarding a past employee in an attempt to deter, thwart or hinder future employment is open to claims of defamation. In most cases, any communication between prospective employers and past employers is considered privileged, but that privilege does not apply when such communication possesses a motive driven by hatred, hostility, ill will or anger toward the employee.
Don’t hesitate to learn if you have a case. I offer completely free consultations with no obligations. Call 1-949-477-2277 or email frank@franknicholas.com now.