FREQUENTLY ASKED QUESTIONS (FAQs)
The following questions are among those that come up most often with our callers. This information is provided as a guideline, and is not intended to be, nor should it be taken as legal advice. Each situation is different. These answer are general interpretations of the law and are not fact-specific to individual cases. Providing them does not create an attorney-client relationship. Before taking action on any of the following information, it is always best to contact an experienced employment attorney for a review of your specific facts and documents.
The California Fair Employment and Housing Act makes it illegal for an employer to discriminate on the basis of race, religious creed, color, age, national origin, ancestry, physical disability, mental disability, medical condition (example, diabetes or a history of cancer), marital status, sex, or sexual orientation.
Workplace discrimination against people predisposed to a genetic hereditary disease is also illegal, as is testing employees for genetic characteristics.
California law also prohibits the concept of “English-only” in the workplace, unless there is a business necessity for the policy, for example, a telephone operator who must communicate in English with callers. An employer cannot limit or prohibit employees from using any language in the workplace, unless to do so is required to perform the job. In cases where it is permissible, employees must be notified of the circumstances and times when language is restricted and the consequences of violating the restriction.
California antidiscrimination law is often written or interpreted more broadly than federal law, especially in the areas of disability discrimination and sexual harassment. Unlike federal law, coworkers who are not supervisors can be sued and held personally responsible for unlawful workplace harassment. State law on disability discrimination differs in several ways from the federal Americans with Disabilities Act.
California law generally has: (1) broader definitions of physical disability, mental disability, and medical condition; (2) no requirement for a substantial limitation on a major life activity (a limitation is enough); and (3) limitation is determined without considering mitigating measures.
For further information on this topic, please see this publication at the Department of Fair Employment and Housing.
The Family and Medical Leave Act (FMLA) was passed to help employees balance the demands of the workplace with the needs of their families. The Act requires covered employers to provide reasonable unpaid leave to employees for certain family and medical reasons. Employees are entitled to a total of 12 work weeks of unpaid job-protected leave during a 12- month period.
The Family and Medical Leave Act (FMLA) enacted in 1993, is the primary federal law giving employees a protected right to take family or medical leave without losing your job and/or health insurance benefits or suffering retaliation. Provided that the employer has 50 or more employees, the FMLA guarantees an employee who has been working for a company for 12 months, excluding vacations or other leave (other than military) the right to job-protected, 12-week, unpaid leave to recover from a serious medical condition or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. This right is protected for both men and women. The FMLA guarantees that at the end of the leave you will be given the same job you left or another job equivalent in pay, benefits, and other terms and conditions. During the leave, the employer is required to maintain your health insurance benefits to the extent that it would have if you hadn’t taken leave.
In January 2009, the FMLA was updated to include new military family leave entitlements. These changes included allowing eligible employees to take up to 26 weeks of unpaid leave to care for a service member with a serious illness or injury incurred in the line of duty. Also, the changes allow family members of covered military members to take up to 12 weeks of unpaid leave to manage their affairs while the member is on active duty.
Other federal laws that may also protect you when requesting a family or medical leave are: Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978, (see section 2000e(k) for the specific language concerning pregnancy) and the Americans with Disabilities Act (ADA). Title VII makes it illegal to discriminate on the basis of sex, which includes pregnancy discrimination, and may protect employees who wish to take leave for pregnancy-related reasons. The ADA makes it illegal to discriminate on the basis of disability, and may protect employees who wish to take leave for disability-related reasons.
Not everyone is protected by the FMLA. Both you and your employer must meet certain qualifications.
Employer requirements: your employer must have 50 or more employees on the payroll for 20 work weeks during the current or preceding calendar year. Employees who work for your employer within a 75-mile radius of your worksite count toward the 50-employee total.
- To determine whether your employer is covered, find out how many employees are on the payroll, including those on leave and working part-time.
- If your location does not have 50 employees, find out whether your company has other employees at locations within a 75-mile radius.
- Employee requirements: you must have worked for your employer for at least 12 months and for at least 1,250 hours during the period immediately preceding the commencement of the leave.
- If you worked 25 or more hours for 50 weeks in a year, you would have worked the required total of 1,250 hours. Only actual time worked counts; other time for which you are paid, such as vacation, holidays and sick leave, does not count towards the required 1,250-hour total.
- The 12 months an employee must have been employed by the employer need not be consecutive months. The break in employment can be no more than 7 years unless the break is due to military service obligation or according to a previous written agreement with the employer.
While certain exceptions exist, most employees who meet these two conditions will qualify for leave under the federal FMLA. Your state may have different requirements for coverage under state law.
For further details, see the US Department of Labor web page on the FMLA
I’ve been working overtime and not taking lunches/breaks. I believe I’m non- exempt. How can I tell?
In California, wages, meal periods, and overtime pay are determined by both state and federal law. Employers are generally required to follow certain rules in how they treat and compensate their employees. These rules, however, do not apply to several important groups of people—called “exempt” employees.
An employee’s classification as either exempt or non-exempt will often determine their right to overtime pay, minimum wage, rest breaks, and meal periods. In California, there are two main sets of laws that govern these rights:
- The federal Fair Labor Standards Act
- The California Labor Code.
The exemptions vary somewhat depending on whether state or federal law is applicable and which rights are being asserted. Generally, exempt employees will not be eligible for overtime and other protections that are guaranteed non-exempt employees. This is usually because they are in management or other decision-making positions that in most cases, provide them higher salaries and a stake in the running of the business.
The intent is to exempt business executives, administrative and professional employees. Thus, the following criteria apply:
The employee must perform work that is administrative, professional, or executive in nature; he or she must, for example, perform office or non-manual work directly related to management policies or general business operations of his or her employer or his or her employer’s customers, and the employee must regularly exercise discretion and independent judgment in performing those duties.
The employee must also make at least two times the state minimum wage for full-time employment.
The employee’s primary duties must involve the kind of work described in their exception. This means that more than one-half of their time must be spent performing exempt work.
If any of these elements are missing, you would be best served to contact an employment attorney, as you are likely “non-exempt” and may be owed overtime and other compensation under California’s overtime laws.
Note: It is not sufficient merely to be salaried to create an exemption to the wage & overtime laws.
For a complete list of descriptions relating to exempt employees, see the list here California Department of Industrial Relations.
According to the California Labor Code, California is an at-will employment state. Under the at-will presumption, a California employer, absent an agreement or statutory or public policy exception to the contrary, may terminate an employee for any reason at any time.
However, should you have a contract, you should have an attorney look at it for termination provisions. It may state that you can only be fired for “good cause” which may provide you with a claim against your former employer. Further should you be fired for a reason relative to your gender, religion, race or national origin, age, sexual orientation and/or disability, you may have a claim for wrongful termination or discrimination. Should you believe you were being targeted as a member of one or more of these groups, you should contact an experienced employment attorney.
An Independent Contractor is generally someone who is in business for himself or herself. Independent contractors usually perform work that requires a specialized skill or trade that is not part of a company’s regular business. They also typically perform work for multiple customers or clients; set their own fees; work from home or their own place of business; provide their own tools and equipment; and determine how and when the work is to be done. A customer or client may provide specifications or deadlines for the work, but the independent contractor decides how much time to spend and how best to do the job. The concept was intended to cover persons like plumbers, building contractors and others in business for themselves in these, and similar, fields.
Until recently, courts would utilize a 20-factor test to determine whether workers were employees or independent contractors. Those 20 factors would include considerations like those listed in the previous paragraph. In California, however, the state Supreme Court issued a decision in April 2018, Dynamex Operations West v. Superior Court, which established a new test for determining whether a given worker should be classified as an employee or an independent contractor. Under this test, which is often called the “ABC” test, a worker will be considered an employee unless he or she meets all of the following requirements:
(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
In the current market, with so many businesses utilizing the categorization for full time “temporary” staff, to avoid tax liabilities and other inherent expenses associated with proper compensation of the workforce, along with the confusion generated by the so-called “sharing” or “gig” economy, it has become harder for the distinction to be made to the workforce. Some of the historical factors may still be present in these situations, but there may also be critical differences. For example, an employee/contractor may not set his or her own fees, may have to comply with an Employer’s rules of conduct on the job, etc. The definitions themselves are currently being hashed out in the courts.
After the recent recession, many of California’s workers were forced to take these less-secure contracting jobs, going without Workers Compensation insurance coverage, health insurance, and wage-withholding. While getting an untaxed paycheck may seem like an advantage to some, persons who are not accustomed to making quarterly tax payments are left holding the bag come April. Further, they will, in the long term, find themselves losing out on the benefits of Social Security and possible Pension or IRA benefits of more secure employment. Most of these contractors are younger and thus, haven’t really given much thought to the future.
California has strengthened its laws against deliberately mis-classifying employees by passing SB 459, which went into effect in January of 2012, and impose significant penalties on employers who improperly utilize the classification to avoid tax consequences.
The factors for determining classification of employees are complex. Should you have doubts about where you currently stand, it would be wise to contact an experienced employment attorney.
If you are female, and employed, it can affect you in several ways. While it has been unlawful under Federal law [the Equal Pay Act of 1963] to pay women less than men for the same job, in practicality it has been difficult for women to determine if that was the case while actually on the job. There were too many Company regulations against employee’s discussing rates of pay, incidents of records “vanishing” when a female employee would bring a claim, and similar occurrences. In response to the ineffectiveness of current law, California passed SB 358 to augment existing law and make it easier for women in the workforce to acquire the information and records they need to support claims of wage imbalance for equal work.
The California law is being hailed as “the Toughest Law in the Nation” to support a woman’s right to be paid for the same work as their male counterparts. The primary changes include:
- “Substantially similar work” – the use of this term, rather than “equal work,” as previously employers could simply give a woman a slightly different title and contend that the female was simply doing a different job. This new definition would allow a female employee to compare her position to a male in the same company with differing job titles, but who is performing substantially similar duties.
- “Same establishment requirement” – it will no longer be necessary to compare the salary of a female worker in a company to that of a male worker in the same physical location. An employee may now state a claim by showing she makes less than her male counterpart at a different work site within the same company.
- New burdens of proof on the employer – while previously employers were able to avoid liability by demonstrating various acceptable methods of pay disparity, such as seniority, merit-based pay, piece-rate, or any other “bona fide factor other than sex” – while these factors remain a defense, the employer must now prove that they have been “applied reasonably” and that they “account for the entire wage differential.”
- Extended recordkeeping requirements – The length of time employers must maintain records of the “wages and wage rates, job classifications, and other terms and conditions of employment” is now three years. Previously it was two years.
- Transparency – Company policies notwithstanding, employees are now allowed to disclose wages, to ask the employer about wages, and to discuss wages amongst themselves. There is, however, no current requirement for the employer to respond to such inquiries.
- Retaliation – The new law prohibits employers from terminating, discriminating against, or retaliating against employees who invoke their rights under the new law and those employees who aid or encourage other employees to do so.
- Remedies –
- An employee receiving less than the wage to which she is entitled is entitled to recover the balance of wages (including interest), as well as an equal amount as “liquidated damages” along with attorneys’ fees and costs.
- An employee who has been discharged or discriminated or retaliated against because the employee engaged in protected conduct is entitled to reinstatement, reimbursement of all lost wages, work benefits (including interest), and equitable relief.
- An employee who has been discharged or discriminated or retaliated against because the employee engaged in protected conduct is entitled to reinstatement, reimbursement of all lost wages, work benefits (including interest), and equitable relief.
First, you must determine if the harassment is due to your being a member of a protected class. As we have previously posted both on our blog and in our other social media outlets, harassing individuals on the basis of race, color, national origin, sex, religion, disability, pregnancy, and/or age (over 40) is prohibited by federal law. If you are a member of the LGBT community, your right to be accepted and free of harassment or discrimination in your workplace is also protected by state law in California, although federal protections still lag behind.
The following is a checklist to follow to insure that you have protected your rights under the law if you are terminated or subjected to some other adverse employment action:
- Keep detailed notes.Begin a diary, and make a note of the date, time and location of each incident, exactly what was said, details of the event, and the names of co-workers or other witnesses who overheard or participated in the discussion or event. These notes can be extremely useful for an attorney in ultimately proving someone was victimized under the law, and they form a strong record to support your case. If you choose to keep a record on a computer, or in your mobile device, make sure it is one that belongs only to you. If this data is kept on company property, it may have to be left with them upon your termination, and then will only serve to provide defense counsel with a great set of talking points to defend in litigation, not to mention giving them first crack at your witnesses.
- Retain your evidence.Keep any physical evidence of the unlawful behavior. If there are objects or pictures which were posted, left for you, or given to you in the workplace that you believe were discriminatory or harassing, hang on to them. If offensive material is left on your computer by a co-worker, take a photo with your smart phone. If you are sent offensive emails, preserve the evidence by retaining copies for your records. Check your employee handbook to be sure there is no prohibition against removing company data, and be certain to exclude anything that is prohibited or proprietary in any materials you may remove from your workplace.
- Report your complaints to the appropriate party. Letting your employer know that you feel you are being discriminated against or harassed is an important step. Make a complaint as soon as possible. If you do not let the offender know that the behavior is unwelcome, or that it is making you uncomfortable, an employer may be able to avoid litigation. In many cases it is a necessary component to your case. If the person harassing you is your supervisor or the HR representative designated to receive such complaints, take your complaint up the ladder to a superior.
- Note: If your immediate supervisor is the person you feel is being discriminatory or harassing, and you feel uncomfortable confronting him or her directly, report the matter to his or her superior or to a human resources representative. If he or she is the owner, or the only person above you to whom you can make a complaint, contact an attorney to help determine how to accomplish your duty to report.
- Ask your employer to make a written record of your complaint(s). It is important to put your employer on notice that you think the matter should be taken seriously. Ask that an investigation be made into your allegations and that disciplinary or corrective action against the offenders be taken. Employers are required by law to give prompt consideration to all reports of discrimination and harassment. If they fail to do so, contact an attorney.
- Read your Employee Handbook. Read up on your employer’s policies with regard to anti-discrimination and sex harassment in any materials provided to you during your course of employment. These guidelines can be useful to determine if your employer is aware of its duty to protect employees, or whether it has acknowledged to the workforce that the company will not act in a discriminatory way. The presence of a written acknowledgment of those policies may serve to benefit your position. If you have a copy of the policy in a handbook or other handout, retain a copy of it.
Please Note: IF YOU ARE SIMPLY BEING BULLIED IN THE WORKPLACE, NO CURRENT FEDERAL OR STATE LAWS ARE IN PLACE TO PROHIBIT THAT ACTIVITY, but there is currently a great deal of discussion surrounding the passing of new laws to deal with the issue. For information on how to help in the fight to change that, and/or advice on how to deal with your situation, visit the Healthy Workplace Campaign website.
I reported my employers to OSHA, and now I have been fired. Am I protected under any Whistleblower laws?
The law in this area is complex and extremely individualized. Reporting fraud or other employer misconduct is generally a protected activity, and whistleblowers are protected from retaliation by the employer under the law. However, protections available to you, and a determination of the likelihood that you have a case will depend on your facts. Contact an experienced employment attorney in your area, for an evaluation of your specific situation, and an assessment of the protections available to you.
The battle for women’s equality in the workplace is far from over. If you, or a loved one, have experienced any of the following, or something similar, while pregnant on the job, call an experienced employment attorney.
- You were passed over for a job in spite of your qualifications, and your pregnancy, or plans for future family somehow came up in the interview
- You are subjected to various types of harassment relating to your pregnancy (e.g. “Baby brain” or suggestions that pregnant women somehow cannot perform their work as well as persons who are not pregnant, capabilities, stereotyping of your performance based on pregnancy)
- You were denied a promotion, raise in pay or other benefits promised, upon your employer learning of your pregnancy
- You were forced to quit or terminated (particularly if you have noticed that other women also mysteriously left employment with your company after becoming pregnant)
- You were denied access to training or job assignments immediately after applying for maternity leave or letting your boss know you were expecting
- You were demoted, laid off or fired upon becoming pregnant (this can be done legally, so take note of the circumstances to provide your attorney)
- You were prevented from coming back to work (following childbirth) even though you were ready to start back on the designated date after your leave was up
- You are told your job is no longer available, following a short leave of absence for pregnancy-related issues
Federal law does not yet include transgender and gender-nonconforming persons, but fortunately, here in California, there are laws in place specifically geared to protect members of the transgender community. In 2012, The Transgender Anti-Discrimination Law was passed, but, unfortunately, many in the transgender community remain unaware of their rights. In 2014, the School Success and Opportunity Act went into effect, extending gender identity and expression discrimination protection to transgender and gender-nonconforming K-12 students in public schools.
KNOW YOUR RIGHTS
In California, being transgender puts you in a protected class. As a result, many forms of discrimination against you as a transgender or gender non- conforming person are prohibited by law, and you can seek protection from such discrimination in the following ways:
- A transgender person cannot be fired, harassed for being transgender, made to dress to conform to the sex assigned them at birth, or refused consideration for a position, in the course of his or her employment.
- A transgender person cannot be discriminated against when applying for housing; nor can a person be evicted for being transgender.
- A transgender person may use the restroom appropriate to the gender with which he or she identifies in all businesses open to the public, such as restaurants, office buildings, and entertainment venues. This rule also applies to using the restrooms at his or her place of employment.
- A transgender person cannot be denied treatment on the basis of being transgender by a physician or hospital.
- A transgender person applying for housing or accommodations in a shelter that is run by a religious institution* cannot be refused housing on the basis of being transgender.
- In California’s public schools, transgender students must be treated as the gender with which they identify in manner of dress, inclusion in sports and school programs and the use of bathroom facilities consistent with their expressed gender identities.
*It should be noted that there are exceptions granted to some religious organizations and educational organizations, and these institutions may currently refuse to employ members of the LGBT community as a whole.
I’ve signed a Separation Agreement and I just found out the company offered another co-worker who was terminated more severance than I received. Is there anything I can do?
Probably not. Once you have accepted the terms of a separation or severance agreement, you are generally bound by its terms and may have released all rights to future litigation, even surrounding other issues you were unaware of at the time of signing. There are certain restrictions on the time limits for executing these documents if the employee is over a certain age, but most employers are aware of these restrictions and allow sufficient time to make these documents binding under the law. It is wise to consult with an attorney prior to signing such an agreement.