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What are my Rights?

Wage Theft

Almost everybody who works in California is entitled to minimum wage. Exceptions are few and far between.

California law requires employees to get paid time and one-half for all hours worked in excess of 8 in one day or 40 hours in one week, unless they are “exempt” from the requirements to pay overtime. In order to be “exempt” from the requirements to pay overtime, an employee must be employed in a administrative, executive, or professional function and spend over 50% of his or her working hours exercising discretion and independent judgment or supervising other employees. Just because an employee has a managerial sounding title or is paid a salary, does not mean that person is not entitled to overtime pay.

The California Supreme Court recently confirmed what employment lawyers have thought for years. Most so-called “independent contractors” are really employees who are entitled to be paid for all hours worked, including usually overtime wages and meal and rest breaks, and reimbursement for work-related expenses. A worker is considered an employee and not an independent contractor unless all three of these conditions exist. First, the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; second, the worker performs work that is outside the usual course of the hiring entity’s business; and third, the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

California law requires employees be paid for all time an employer allowed or permitted employees to work so long as they know about it. The work does not have to be all authorized in advance. If employees are working for the benefit of an employer and they are aware of the work, employees must be paid.

California law says “he who shakes the tree is entitled to the fruit.” If a commissioned employee has done his or her part of the sale, the employee is entitled to commissions. This is usually true even if the employee quits or is terminated before the commission is due.

California law enforces bonus agreements. If an employee has done his or her part of the bonus agreement, such as reaching individual or team production goals, then the employee is entitled to his or her bonus.

California law requires that the employer normally pay all expenses incurred in connection with the performance of their duties. This includes for things like uniforms, tools, cell phones, and mileage if employees use their own vehicle. If an employer requires employees to provide their own uniforms, tools, or mileage or if employees are otherwise required to pay money to their employers part of their job, employees may be entitled to compensation.

Wrongful Termination

Unless there is an agreement to the contrary, employees in California are employed “at will.” “At will” employment simply means that both the employer and the employee have the right to end the employment relationship for any reason or no reason at all. Under most circumstances, there is no requirement that an employer have good cause, or any cause, to terminate an employee. In other words, an employee is not guaranteed continued employment as long as he or she his doing a good job.  There are, however, certain exceptions to this general rule. These exceptions make up the law of unlawful or wrongful termination.

It is unlawful to retaliate against an employee who is making complaints about an employer’s violations of law or is refusing to participate in unlawful activity. Unlawful retaliation may be any adverse change in the terms and conditions of employment, up to and including termination.

Wrongful termination focuses on an employer’s motivation for the termination. It is wrongful termination for an employer to terminate an employee because of discrimination; that is, an employee’s race, religion, sex, national origin, disability, medical condition, age, or marital status. It is a also wrongful termination if an employer violates an express or implied, oral or written contract not to terminate an employee under those conditions.

Leaves & Accomodation

Employees who work with employers who employ over 50 people and who have been employed at least one year are entitled to up to 12 weeks’ unpaid leave to care for a serious health condition of themselves or a family member. Pregnant employees who work for employers who employ over five people are also entitled to up to four months additional unpaid pregnancy leave. Employees with disabilities may be entitled to greater periods of leave if such leave is a reasonable accommodation for a disability.

An employer must reasonably accommodate an employee with a covered disability. A covered disability is any impairment which interferes with an employee’s major life activities such as walking, breathing, seeing, hearing, or working, who can otherwise perform the essential functions of the position. A crucial aspect of the obligation to accommodate is for there to be an interactive dialogue between the employer and the employee to discuss what the employee’s needs are and what the employer can or should do.

California law requires that an employer provides at least 30 uninterrupted minutes for employees to use for their own purposes if an employee worked more than five hours. If an employee works more than 10 hours, he or she is is entitled to two uninterrupted 30 minute breaks. If a meal break is shortened or interrupted for any work-related reasons, then the employee is entitled to compensation.

California law generally requires that employees receive a paid 10 minute rest break to use for their own purposes every four hours of work, and approximately in the middle of each four-hour period. For example, in a regular eight hour day employees should get a 10 minute break about two hours in, you’re entitled to 30 minute unpaid break about after four or five hours of work, and you’re entitled to another 10 minute break about six hours. If employees end up working longer, you’re entitled to another 10 minute break after the eighth hour of work and if employees worked 10 hours you’re entitled to the second unpaid half hour meal break. If the employer does not make all these breaks available, employees are entitled to compensation.

Harassment, Discrimination
& Retaliation

Employment discrimination includes negative job actions, such as termination, demotion, or negative changes in the terms and conditions of employment, that are motivated by an employee’s race, religion, sex, national origin, disability, medical condition, age, or marital status.

Harassment includes unwanted conduct based on employee’s race, religion, sex, national origin, disability, medical condition, age, or marital status which is sufficiently severe or pervasive so as to create a hostile work environment. Sexual harassment also includes requests for sexual favors, sexual advances, or propositions; verbal conduct such as epithets, slurs or derogatory comments or comments about a person’s body, appearance or sexual activity; physical conduct, including assault, impeding or blocking movement, or any physical interference with normal work or movement; individual harassment such as leering looks, offensive gestures or derogatory posters, cartoons, or drawings. Sexual harassment also includes gender harassment or sex based harassment; that is, conduct that shows hostility based on gender even though the conduct itself is not sexual, such a comments that women do not belong in the workplace.

Class Actions & the Private
Attorney General Act (PAGA)

Some employers systematically violate California law such as having improper or illegal or insufficient policies for things like meal and rest breaks, reimbursement of expenses, or recording and paying for hours worked. We are experienced in bringing class actions to obtain compensation for all the employees of a company who are subjected to illegal practices.

PAGA empowers individuals to represent the State of California to collect penalties for a wide variety of violations of California law. If an employer is violating California law, an employee may be entitled to represent the interests of the State in enforcing these important California laws.