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Short Answers to Complicated Questions

I want to share my knowledge with you so you are better prepared and have some of your questions answered before we speak. There is no way to cover all employment law topics, but I have addressed many common issues in these short videos. Be sure to check back regularly for more informative and engaging videos and reach out if your question is still not answered.

What is the difference between an exempt and nonexempt employee?

Exempt employees are exempt from overtime. They generally perform executive, administrative, or professional jobs. They also regularly exercise discretion and independent judgment on the job. Nonexempt employees are generally paid hourly. They are entitled to overtime, meal and rest breaks, and must be paid the minimum wage.

What kind of evidence do I need to prove retaliation?

In order to state a claim for retaliation under California law, you need to show three things. First, you must show that you engaged in protected conduct, such as reporting illegal activity or discrimination. Second, you need to show that you suffered an adverse employment action, which is a material change to the terms and conditions of your employment (e.g., termination, demotion, or changes to working hours, pay, or location). Third, you’ll need to show a causal connection between your protected activity and the adverse employment action. This can be shown in a variety of ways, including close timing between your reports and the adverse action, the employer’s failure to investigate those complaints, sham discipline, or the employer’s failure to follow its own policies, among other ways.

What protection do I have against retaliation by my employer?

Both California and Federal laws protect employees from retaliation for asserting their rights or engaging in other types of protected activities. Common types of protected activity include reporting illegal activity, complaining about discrimination or retaliation in the workplace, requesting medical leave or reasonable accommodations, or raising concerns about unpaid wages, or health and safety violations.

When is my employer obligated to pay me overtime?

Only non-exempt employees are eligible for overtime pay. Those are employees in non-executive, non-administrative, and non-professional jobs. If you work more than eight hours a day or more than 40 hours in a week, you’re entitled to overtime at a rate of one and half times your regular rate of pay.

What is the “interactive process”?

The interactive process is a back-and-forth dialog between an employer and a disabled employee to determine whether there are reasonable accommodations that can help the disabled employee perform the job and remain employed. Generally, when an employee reports suffering from a disabling condition, it triggers the employer’s obligation to engage in the interactive process, to understand the employee’s limitations, and understand what reasonable accommodations are needed. An employee does not need to divulge their diagnosis; however, the interactive process should focus on what the limitations are and what accommodations are needed so the employee can remain employed.

What are the rules for meal and rest breaks for employees in California?

The general rule of thumb is that employees in California are entitled to a paid, ten-minute rest break for every four hours of work, and an unpaid, 30-minute meal break for every five hours worked. Your meal break should be completely uninterrupted, and you should be relieved of all your duties during that time.

What are my rights to maternity leave?

New parents in California are generally entitled to twelve weeks of job-protected leave to care for a new child, whether it’s a biological child, an adopted child, or a foster child. If you’re having pregnancy-related complications and need medical leave for that, you may be covered under California’s Pregnancy Disability Leave Laws as well.

What damages are available if I sue for discrimination?

If you were terminated for a discriminatory reason, the law allows you to recover certain types of damages. Those damages include back pay, front pay, compensation for lost benefits, compensation for your emotional distress, attorneys’ fees, and potentially punitive damages. The value of your case largely depends on how long you worked there, how much you made, how long you were unemployed, and most importantly, what happened to you.

What is a “reasonable accommodation”?

Reasonable accommodations are job modifications that allow a disabled employee to perform their job duties. This can include assistive devices such as a special computer monitor or telephone, as well as job restructuring, work from home, additional training, transfer to a vacant position, or even a leave of absence.

What parts of employment law do you practice?

I represent employees in all facets of employment law. Generally, I represent employees in matters involving discrimination, retaliation, wage and hour violations and employment contracts. I also provide advice and counsel to employees on offer packages as well as reasonable accommodations.

What is sexual harassment?

Sexual harassment is a form of discrimination because it singles out the victim based on that person’s gender. In general, there are two types of sexual harassment: quid pro quo and hostile work environment. Quid Pro Quo harassment generally involves a supervisor requesting sexual favors in exchange for a raise, a promotion, or a positive performance review. Hostile Work Environment harassment typically involves offensive conduct that’s gender-based that a reasonable person would find to be offensive, abusive, or threatening. Sexual harassment need not be overtly sexual, rather it can include differential treatment or harassment that is non-sexual but directed at one gender. The harasser could be a man, a woman, or a non-binary. Furthermore, there is no requirement that the harasser is of a different gender than the victim.

What is “at-will” employment?

Most California employees are considered “at-will,” which means that the employee can quit the job at any time for any reason, and likewise the employer can terminate the employee at any time for any reason. A termination based on excessive tardiness, misconduct, or even if the employer simply doesn’t like the employee are all lawful. The law only prohibits terminations based on certain protected reasons, such as your protected category (e.g., age, race, gender, etc.) or engaging in protected activity (e.g., reporting unlawful activity, requesting medical leave or reasonable accommodations, reporting discrimination or harassment, etc.).

Is my employer required to give me a severance package?

Generally speaking, no. At the time of resignation or termination, your employer is only obligated to pay you the wages owed and the value of any paid time off that’s been accrued but not used. Note that some employees contract in advance for a severance, either individually, through a union contract, or through company policy.

My employer refused to grant my accommodation because of “undue hardship.” What is “undue hardship?”

Undue hardship means the requested accommodation involves significant difficulty or expense, considering the cost of the accommodation, the size of the employer, or the business operations.

My male coworker makes more than me even though I do more work. What can I do?

The Equal Pay Act requires equal pay for equal work. That means men and women doing equal work need to be paid the same. Equal work doesn’t mean that the two employees do the exact same job, but simply means that the two employees perform work of the same skill, and responsibility, and performed in the same or similar working conditions. Note that differences in pay based on education, training, and seniority systems are generally permitted under the law.

Should I hire an attorney to negotiate my offer package?

It’s especially important for high-level executives to engage an attorney when negotiating their offer package. An experienced employment attorney can assist in a variety of ways. First and foremost, they can act as a sounding board, and they also understand the climate and what employers can do to sweeten the deal. Second, once the terms of the employment are negotiated, an experienced employment attorney can analyze the documents and ensure they’re written in such a way to get you what you’re entitled to.

I work for a small business. Are they covered by anti-discrimination and anti-harassment law?

California’s anti-discrimination laws apply to public and private employers, training programs, and employment agencies that employ five or more employees. Harassment is prohibited in all workplaces, even if there’s only one employee or independent contractor on staff. That said, these laws apply differently to employees of the Federal government and certain religious organizations.

I was asked to sign a non-compete. Is it enforceable?

In general, non-competes, which prohibit an employee from going to a competing company, are invalid, null, and void under California Business and Professions Code 16600. However, an employer may require that you sign a non-solicitation agreement, agreeing not to solicit former employees to quit the company.

I still have not received my final paycheck. What should I do?

If you were terminated or laid off, California law requires that your employer pay you all your final wages and any unused vacation pay at the time of your termination. This also applies if you quit with more than 72 hours’ notice. If you quit without notice, then your employer has 72 hours to provide you with your final paycheck and vacation time payout.

Can my employer fire me if I can’t return to work after using all 12 weeks of CFRA or FMLA leave?

It depends; if you took the medical leave for your own serious health condition and you can’t return to work because of that medical condition, then the employer must engage in the interactive process with you to determine whether there are reasonable accommodations to allow you to return to work. Reasonable accommodations could include additional time off, or a modified schedule, among other things.

Do I have a wrongful termination claim?

Most employees in California are ‘at-will’, which means that you can quit or be terminated for any reason at any time. A termination is only wrongful if it violates California law. For example, terminations based on your protected category, such as your age, race, gender, religion, disability, and things of that nature are prohibited. Likewise, it is unlawful for an employer to terminate an employee based on the employee’s protected activity, such as reporting about illegal activities, making a complaint about discrimination or harassment, or taking protected medical leave.

I feel like I’m being discriminated against at work. What can I do?

If you feel like you’re being discriminated against at work, the number one thing you should do is document what’s happening. Write down all of the details about how you are being discriminated against, including who is discriminating against you, how they are discriminating against you, the date, time and location of any discriminatory conduct, and any witnesses to the discrimination. Keep copies of any evidence of the harassment or discrimination, such as text messages, voicemails, or emails. You may also consider reporting the discrimination or harassment to your Human Resources department. Human Resources has an obligation to receive your complaint, investigate the complaint, and take appropriate action. Finally, you should contact an attorney.

I need medical leave, what are my rights?

A variety of laws apply to employees needing medical leave. For example, the California Family Rights Act and Federal Family Medical Leave Act provide twelve weeks of job-protected leave to qualified employees. Even if you don’t qualify under those laws, the California Fair Employment and Housing Act and the Federal Americans with Disabilities Act may allow you to take leave. If the disability is related to pregnancy, you may be covered under California’s Pregnancy Disability Leave Laws.

Can I sue my company for sexual harassment?

Whether you can sue your company depends on who the harasser is. In general, you can’t sue your company for harassment by a co-worker, unless the company knew of the harassment and failed to address it, or they had reason to know of the harassment (for example, if you or someone else complained). However, if the harasser is a supervisor, you can hold the company responsible if that harassment resulted in a tangible adverse employment action such as a demotion or termination.

Can I get fired for reporting discrimination or harassment to my employer?

California law prohibits retaliation against employees who make good-faith reports of discrimination or harassment in the workplace. In fact, your employer has an obligation to receive your complaint, investigate your complaint, and take appropriate action to stop discrimination or harassment from occurring. If you find that you’ve been terminated shortly after making a complaint, you may have a claim for retaliation or wrongful termination.

My employer wants me to sign an Independent Contractor Agreement. Is that legal?

Independent contractors are not employees under the law, and therefore they’re not covered by many of the employment laws, such as the Labor Code or California’s Fair Employment and Housing Act. For that reason, many employers try to misclassify employees as independent contractors to get out of their legal obligations. Recently, the California Supreme Court adopted the ABC test to determine whether a worker is an employee or an independent contractor. That test looks at three different factors: (1) whether the worker is free from the direction and control of the employer; (2) whether the worker is providing a service that’s outside the usual course of business of the employing agency; and (3) whether the employee engages in this profession or trade.

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