California Employment Rights
Employment laws in California are many and varied. They cannot be summed up easily, and an experienced attorney is necessary to address the specifics of any employee’s rights and potential remedies. The following is not an exhaustive analysis of employment laws, but a general outline of laws and rights which employers often violate, and Pieter Bogaards has addressed and resolved for his clients.
Employee Rights in California fall into several general categories, including:
- Right not to be terminated, demoted, harassed, discriminated or retaliated against due to one’s race, gender, disability – or perceived disability – pregnancy, religion, sexual orientation or national origin;
- Right to be paid for all work performed, including overtime, meal and rest breaks, commissions;
- Right to take medical leave for yourself, or to care for a family member;
- Right to reasonable accommodation for any disability;
- Right of a Whistleblower:
- Protection from Retaliation: Not to be terminated for seeking to comply with the laws or report suspected wrongdoing, or to stand up for one’s employment rights; and;
- Qui Tam: To report fraud on the government and receive a percentage of nay recovery; and
- Right to a safe workplace.
If you believe that your employer has violated any of these rights, you may have a claim for recovery and should consult an experienced employment attorney.
The following is a general discussion identifying various employment rights often, and routinely, violated by employers. To further discuss the particular claims applicable to your circumstances, contact Pieter for a free initial consultation.
“At-Will” Employment is Limited — Know Your Rights
California has a concept of employment “at-will” which is too often falsely invoked by employers as a shield to their illegal actions. “At-Will” means that an employer may terminate, demote and fail to hire an employee for any, or no, reason. But it is not unlimited. It does not apply in prescribed circumstances, including the following:
- Discrimination, Harassment or Retaliation – Employees have the right to not to be harassed, discriminated or retaliated against due to their race, gender, disability – or perceived disability, pregnancy, religion, sexual orientation or national origin;
- Contract Claims – Breach of Contract and Breach of the Implied Covenant of Fair Dealing claims are often based in Union Contracts, such as Collective Bargaining Agreement or Memoranda of Understanding, or an employer’s practices and policies or offers of employment. These agreements, either oral or written or formed through practice and policy of the employer, may require an employee to terminate only “for cause” and to explain or justify a termination or other adverse employment action.
- Retaliation – Whistleblower – An employee who in good faith, whether correct or not, raises issues of believed violations of public policy by the employee’s employer, including but not limited to:
- Failure to comply with the Labor Code, including wage and hour statutes;
- Support of another employee in that employee’s claim for discrimination, harassment or enforcement of the Labor Laws;
- Fraud by the employer or failure to comply with statutes or regulations governing the employer’s business or intended to protect the public;
- Raising safety concerns; or
- Filing of a Worker’s Compensation claim.
- Wage & Hour – The right to terminate “at –will” does not affect an employer’s obligation to pay all monies due and earned, provide meal and rest breaks, pay for overtime, and otherwise comply with all Labor Code obligations during an employee’s term of employment.
“At-Will” employees have not relinquished their employee rights. In the foregoing cases an employer must still demonstrate a legitimate business justification for an adverse employment action, such as termination or demotion, and that the action was not motivated by an improper reason such as discrimination or retaliation.
Do not be deterred because an employer claims you are “At-Will”. Consult an experienced employee rights attorney to advise you regarding your rights.
Discrimination, Harassment, Retaliation and Medical Leave
Employers cannot terminate, demote or fail to hire an employee due to their race, gender, sexual orientation, disability — or perceived disability — pregnancy, national origin or other protected status. California and federal laws protect employees from discrimination or harassment of such bases other than an employee’s merits and qualifications. Employees have a further right to take medical leave for themselves or to care for a family member without losing their positions.
Harassment – Sexual and Other Protected Classes
Harassment comes in many forms, and is improper if based upon any protected class. Hanging a noose or placing a swastika in a worker’s locker, or mocking an employee due to a disability, is as much harassment as sexual harassment of a co-worker. Employees have a right to work in an environment free of such noxious hostility and bigotry, whether motivated by an employee’s race, national origin, religion, gender, sexual orientation or disability.
Sexual harassment and hostile work environment apply to both harassment between male and female employees and same-sex harassment. Sexual harassment is defined as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. A single unwanted kiss, or grope, may be enough, and forced acquiescence to protect one’s job is not “consent”. Simply because an employee was afraid to complain, or a complaint would have been fruitless because it would have to be made to, or decided by, the harasser or a crony supervisor, does not negate a claim.
Sexual harassment can include:
- “Quid-Pro-Quo” – Offering employment advantages, including preferred pay, hours or promotion, in exchange for sexual favors; and
- “Hostile Work Environment”:
- Unwanted or uninvited physical conduct, including touching, kissing, assault, impeding or blocking movements;
- Attempts to touch or impede movement or threats to do so;
- Staring, leering or making sexual gestures;
- Submission of inappropriate pictures or material, such as emails of a sexual or explicit nature;
- Posting sexually explicit cartoons or posters;
- Words, making sexually charged comments or using gender based epithets, curses or jokes, referring to an employee’s body or attire in a sexual manner;
- Making or threatening retaliatory action after receiving a negative response to sexual advances.
No Retaliation – “Constructive Termination”
You also cannot be terminated or demoted for reporting sexual harassment. If the harassment is so pervasive or severe to force an employee to quit rather than suffer further indignities, there can be a claim for “constructive termination.” No employee is required to continue to subject themselves to degrading and offensive behavior.
If you believe you have been subjected to harassment of any kind, contact Pieter for a free initial and confidential consultation to know your rights, and options. Your consultation would be privileged and any case would be handled with dignity and discretion.
Wage and Hour Violations (Meal, Rest Periods and Overtime)
Employees have rights for full compensation for all hours worked, to have rest and meal breaks, and not to be terminated for attempting to enforce such rights. Whether you are paid by the hour or on a fixed salary, have the title of a manager or are claimed as “exempt” from wage & hour laws by your employer, you may still have the right to overtime, breaks and other employment benefits granted under the Labor Code.
Misclassification — “Managers” or “Independent Contractors”
Misclassifying employees as “Managers” or “Independent Contractors” is a favored means for employers to avoid paying just compensation. If your work requires you to follow an employer’s instructions, or as a “manager” spend over half your time doing the same work as those you manage, you are likely a “non-exempt” employee and entitled to basic employee rights such as paid overtime, compensation for all time worked and breaks. What your title is, or how a contract you signed may characterize your position, is not determinative. The work you perform, and the conditions under which you perform it, matters more than a title or even the term used in a contract.
Employee Wage & Hour Rights include:
Employees must be paid overtime for:
- work in excess of 8 hours in one workday, or
- work in excess of 40 hours in one work week, and
- work on the 7th day of one work week.
Meal and Rest Breaks:
An employer is legally required to entitle an employee to take duty-free rest and meal breaks, calculated as:
- Meal Break – At least one half hour after working five consecutive hours – for any shift in excess of six hours – and a second meal break after ten hours worked.
- Rest Break – Ten uninterrupted minutes during each four hours of work. Cannot be cumulative time.
Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an “on duty” meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay.
Penalties for failure to provide either a meal break – or a rest break – also adds one hour of pay for each day a meal or rest break is missed.
There can be waivers of meal breaks, but only under specific circumstances and with written agreement by the employee, which can be revoked at any time.
Employees in California must be paid the minimum wage as required by state law. Effective July 1, 2014, the minimum wage in California is $9.00 per hour. Effective January 1, 2016, the minimum wage in California is $10.00 per hour.
Several city councils across California had already raised low-wage pay, and initiatives seeking minimum wage increases were started in the cities of Richmond, San Francisco and Berkeley. On November 4, 2014, San Francisco voters passed Proposition J, raising the minimum wage to $15.00 by 2018. The San Francisco minimum wage will increase according to the following schedule:
|EFFECTIVE DATES||MIMIMUM WAGE RATE|
|July 1st Each Following Year||Increase CPI|
In Oakland, the city’s minimum wage rate was increased to $12.25 per hour in March 2015. Oakland’s minimum wage rate then will increase each year after 2015 based on cost-of-living increases.
Oakland’s measure also includes provisions requiring employers in the city to offer a minimum of at least five days of sick leave to all employees. Joining workers in San Francisco and other cities across the country, employees in Oakland now will accrue one hour of paid sick leave for every 30 hours they work. Employers may cap paid sick leave earned by an employee at 40 hours for employees of “small businesses” (employers who normally have fewer than 10 workers) and 72 hours for employees of other employers.
An employee not receiving overtime, breaks or the minimum wage, can either file a wage claim with the California Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or file a lawsuit in court against an employer to recover the lost wages. A lawsuit also entitles a prevailing employee to costs and attorney’s fees. Additionally, if an employee no longer works for the employer, it is possible to recover a waiting time penalty for up to 30 days of an employee’s daily rate, pursuant to Labor Code Section 203.
Wrongful Termination and Whistleblowing
Employees are the best means of preventing fraud and harm to the public, and enforcement of the statutes and regulations which govern industries – from banking to building. A “whistleblowing” employee has a right to be protected from employer retaliation for reports of suspected wrongdoing, and to receive a percentage of any recovery for reported fraud against the government.
Qui Tam/False Claims Act — A whistleblower who exposes fraud on the government can bring a qui tam lawsuit on behalf of the government, and can receive a share of the recovery as his or her reward. The False Claims Act (“FCA”) also allows people to file actions against federal contractors claiming fraud against the government. Persons filing FCA or qui tam claims may receive up to 15% – 25% of any recovered damages. Claims under the law have been filed by persons with insider knowledge of false claims which have typically involved health care, military, or other government spending programs.
Whistleblower Retaliation — Generally, it is illegal for an employer to demote, terminate or otherwise retaliate against an employee for reporting – whether to the employer internally or to a government agency – a perceived violation of public policy, even if the employee is not correct about the perceived violation.
Examples of such whistleblowing include perceived employer failure to comply with public policy addressed in statute, regulation or municipal ordinance, including:
- Building codes (e.g. using non-code compliant building material);
- Federal Aviation requirements for flight safety;
- OSHA rules to protect workers;
- Insurance, security or banking code requirements to protect investors and insureds;
- Education Code requirement for student education or safety;
- Filing a Worker’s Compensation claim;
- Reporting Labor Code violations;
- Filing, or supporting an employee who files, any claim for discrimination or harassment either internally or with an outside agency or in a civil suit;
- Taking pregnancy or medical leave;
- Reporting safety violations.
Specific statutes also protect whistleblowers who disclose an employer’s illegal acts to governmental authorities or file or assist a false claims action against the employer [e.g. Lab. Code §1102.5; Sarbanes-Oxley Whistleblower Protection Act (SOX), 18 USC § 1514A]
The totality of laws protecting whistleblowers are numerous and will be based upon the industry in which the employee works and the nature of the employer’s violation.
Pieter is experienced with whistleblower cases involving government agencies and major corporations and can assist employees in analyzing their claims, protecting their rights, and securing recovery in whistleblower civil suits.
Severance / Settlement Agreement and Release of Claims
Often an employer will terminate an employee and offer a nominal sum in exchange for a the employee signing a broad-based release agreement which would deny the right to file a complaint of any kind, in any forum, for claims “known and unknown.” In this way an employer can attempt to seek to insulate themselves from their wrongdoing by bullying an uninformed, and unaware, employee.
Employees are protected from waivers which do not offer compensation beyond sums to which they are rightfully due. Worker’s over 40 years old must receive 21 days to consider such a release or age discrimination claims, and then have 7 days to retract such a release once signed.
It is critical to have such a document reviewed by an attorney, and to discuss what claims the employer may be seeking to resolve “on the cheap” from an unwitting employee.
Depending on the circumstances, an employee may be able to negotiate a fair and equitable settlement or severance payment in exchange for an informed promise not to sue the employer. Though not required by law, settlement agreements, releases and severance payments are often offered to “buy their peace” and prevent future administrative or civil claims.
Employer Size Matters
Each of these rights is differently enforced, and not applicable in all workplaces. Employer size does matter, for instance the following laws apply only to employers with a stated number of employees:
- California Discrimination Laws – Must have at least five employees;
- Federal Discrimination Laws – Must have 15 employees;
- California Harassment – One employee is enough;
- Medical Leave – Must have 50 employees;
- Other Municipal laws for sick leave may only apply to employers of ten or more.
How the number of employees is determined can depend upon whether an employer has other offices or employees within 75 miles of where the aggrieved employee works, even if that employee works with less than the required number of employees at their own worksite.
An employee must consult an experienced employment lawyer to assist in determining what laws may apply to their employment situation, and their employer. Never assume that you are precluded from pursuing your rights because you work for a small employer.