Frequently Asked Questions About Employment Law
California law requires all employers to provide proper compensation to their employees, and to provide meal and rest breaks. If an employer violates any of these obligations, it has committed what is generally referred to as a “wage and hour” violation. Our firm represents employees in a variety of wage and hour matters, including overtime pay violations and meal break / lunch break and rest period violations.
Meal Breaks / Lunch Breaks / Rest Breaks
All non-exempt employees in California are entitled to a 10 minute rest break for every four hours worked. Furthermore, non-exempt employees must be given a lunch break of at least 30 minutes for any work period of more than 5 hours during a workday. During a rest or lunch break, the employee must be relieved of all job duties. With certain exceptions, an employee is generally considered non-exempt unless he or she is in a management, administrative or professional position. It also is important to note that the determination of whether or not an employee is exempt or non-exempt is based on his or her duties, not on how the employee is paid. Therefore, even salaried employees can be non-exempt. Also, job titles are irrelevant to determining if an employee is exempt or non-exempt. For example, just because an employee has been designated as a “manager,” doesn’t necessarily meant that that employee is exempt. Again, it is the actual job duties that are important.
Overtime Claims
In California, overtime compensation must be paid to to non-exempt employees who work more than 8 hours during any workday, or more than 40 hours during any workweek. California law further provides that for all hours worked in excess of eight hours, up to and including 12 hours during a single workday, or for the first eight hours worked on the seventh consecutive day of work, the employee shall be paid 1 1/2 times his or her regular rate of pay. For any time he or she works in excess of 12 hours during a single workday, or for any time worked in excess of 8 hours on the seventh consecutive day of work during a workweek, an employee must be paid double their regular rate of pay.
Pregnancy Discrimination Act
The Pregnancy Discrimination Act provides that women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their inability to work. Therefore it is unlawful sex discrimination for an employer to have leave of absence policies that treat disabilities due to pregnancy, childbirth or related conditions less beneficially than disabilities due to other medical conditions.
California Pregnancy Disability Leave Law
The law requires employers who employ 5 or more employees to provide pregnant employees who are disabled by their pregnancy up to four months of leave. And, CA law also requires an employer to transfer a pregnant employee to a different job position. Additionally, following a leave taken under the law, a pregnant employee who is qualified to take leave under the California Family Rights Act (CFRA) may also have the right to take an additional 12-week leave. Therefore, in the right circumstances, a pregnant employee may be entitled to 4 months leave under the PDLL, plus an additional 12 weeks of leave under the CFRA. For most purposes, employees who are on pregnancy disability leave must be treated the same as employees on other types of disability leave in terms of pay, benefits and other terms and conditions of employment.
Americans With Disabilities Act (ADA)
The The United States Congress passed the ADA in order to protect employees from being discriminated against because of a disability. It not only prohibits disability discrimination, but also requires employers to make reasonable accommodations to permit disabled employees to perform a job’s essential functions. The ADA was enacted primarily to 1) provide a clear and comprehensive national mandate to eliminate discrimination against individuals with disabilities; 2) to provide consistent, strong, clear and enforceable standards that address discrimination against individuals with disabilities; and 3) to ensure that the federal government plays a primary role in enforcing standards set forth under the Act.
Employers Covered by ADA
The ADA covers persons or entities engaged in an industry affecting commerce with 15 or more employees on each working day in each of 20 or more calendar weeks in the current or preceding calendar year. (*however, please note that California’s Fair Employment and Housing Act applies to employers with only 5 or more employees, and provides even greater protection than the ADA)
Unlawful Discrimination
It is unlawful for an employer to wrongfully termination, discriminate or harass an employee because of that employee’s race, sex, color, national origin, religion, ancestry, pregnancy, physical or mental disability, marital status, medical condition, age, or sexual orientation. (There are also other types of unlawful discrimination discussed elsewhere on this site.) An experienced employment discrimination lawyer can evaluate whether you have a case.
Enforcement in California
In California, most cases of unlawful discrimination by an employer are pursued under California’s Fair Employment and Housing Act (FEHA), rather than federal law, Title VII. That is the case because in most instances FEHA provides greater remedies and more protection to an employee who has been victimized by this type of conduct than does federal law.
Am I an At-Will Employee?
Absent evidence to the contrary, in California all non-public employees who are not members of a union, and are not employed under a contract for a specific duration of time, are presumed to be at-will employees. As mentioned above, however, there are numerous situations where an employee is permitted to bring a legal claim for wrongful termination or demotion against their employer even though the employee is at-will.
What if I Have a Contract for a
Specific Time Period?
If you have been working under a contract that requires you to work for your employer for a specific period of time, e.g. a one-year contract, then in most cases you would not be considered to be an at-will employee. In that situation, you ordinarily will have even greater protection from being wrongfully terminated or demoted than an at-will employee.
What is the FEHA?
The Fair Employment and Housing Act (FEHA) provides protection from harassment or discrimination in employment because of: Age (40 and over), Ancestry, Color, Religious Creed, Denial of Family and Medical Care Leave, Disability (mental and physical) including HIV and AIDS, Marital Status, Medical Condition (cancer and genetic characteristics), National Origin, Race, Religion, Sex, and Sexual Orientation.
Does the FEHA Give More Protection Than Federal Law?
Federal laws addressing discrimination in the workplace primarily are set forth under Title VII of the Civil Rights Act of 1964(Title VII). California’s FEHA, however, provides greater protection for employees than that provided by Title VII For example, in addition to prohibiting the types of discrimination described in Title VII FEHA additionally prohibits discrimination on the basis of marital status. Furthermore, Title VII only applies to employers who employ 15 or more employees, while FEHA generally applies to employers with only 5 or more employees. (Except for sexual harassment which FEHA prohibits if the employer employees one or more employees.
What is the FMLA and CFRA?
Depending on the number of employees working for your employer at or near your work site, you may be legally entitled to take medical leave under either the federal “Family Medical Leave Act” or the state “California Family Rights Act.” Except for a couple of exception, these two Acts are identical, and claims can be brought under either one or both. If your are entitled to take such leave, your employer cannot fire you or otherwise retaliate against you for exercising this right. This legal right applies even to “at-will” employees, and allows an employee who has been victimized by an employer that has refused to meet its obligations under these Acts to bring a lawsuit for damages against the employer. Such an employee may even be awarded reimbursement for attorney fees.
An employee entitled to FMLA or CFRA leave is entitled to take a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:
- a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions;
- the care of spouse, son, daughter, or parent of the employee who has a serious health condition;
- the birth of a son or daughter of the employee and the care of such son or daughter; or
- the placement of a son or daughter with the employee for adoption or foster care. Depending on the circumstances, leave authorized under FMLA or CFRA does not have to be taken consecutively, but cannot exceed 12 weeks during any 12-month period.