EMPLOYMENT LAW
Minimum Wage, Overtime, Rest Breaks, Meal Breaks, Waiting Time Penalties, Sexual Harassment, Discrimination and Wrongful Termination
We are highly experienced in handling employment law matters. We have expertise in cases involving overtime violations, rest break and meal break violations, wage theft, sexual harassment, workplace discrimination based on race, religion, ethnicity, national origin, sexual orientation, pregnancy, age and other prohibited categories. We have a history of obtaining excellent outcomes in employment cases.
Wage & Hour
1. Minimum Wage
The hourly minimum wage for California in 2020 is $12.00/hr for employers with 25 or less employees, and $13/hr for employers with 26 or more employees. The minimum wage rates will be increasing annually for the next few years.
2. Meal and Break Periods
Employees must be given a 30-minute, unpaid meal period for every 5 hours worked in a day. Employees must also be given a 10-minute paid rest break for every 4 hours worked in a day.
3. Uniforms and Equipment
Clothing and equipment required by the job must be paid for the employer. An employer cannot deduct the cost of uniforms or equipment from the employee's pay, but the employer can require a reasonable deposit.
4. Food, Lodging and Transportation
An employer providing food, lodging or transportation to an employee cannot credit the value of these items toward the requirement to pay minimum wage without the voluntary, written agreement of the employee.
5. Overtime Pay
California law provides for daily overtime pay of 1.5 times the regular wage after 8 hours worked in a day, and 2 times the regular wage after 12 hours worked in a day, and after 40 hours in a work week.
6. Records of Hours Worked
Employers must keep records of each employee of daily hours worked and rate of pay. If your employer does not keep accurate records and you have a dispute about hours worked, the Labor Commissioner will accept your own records as evidence.
7. Holiday, Vacation, and Sick Pay
Employers are not legally obligated to provide holidays, vacation or sick days. However, if your employer has promised to give you such days off with pay or has been in the practice of doing so, you may be able to enforce payment as verbal, written, or implied contract in court.
8. Final Pay
If you are fired or laid off from your job, all wages (including accrued, unpaid vacation time) should be paid in full at time of termination. If you quit your job and give more than 72 hours' notice, all wages should be paid at the time you leave your job.
9. Violations of the Law/ Unpaid Wages
If you think you employer has violated any of these laws or that you may be owed unpaid wages, you can file a claim against your employer. Please contact our office to discuss your case.
10. Retaliation
It is illegal for an employer to fire or discriminate against anyone who reports a violation of the wage and hour laws to the Labor Commissioner.
FREQUENTLY ASKED QUESTIONS
1. What is the California "overtime law"?
In California, the general overtime provisions are that a non-exempt employee shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek (or double time as specified below). Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek requires the employee to be compensated for the overtime at not less than:
One and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
2. Can an employee waive his or her right to overtime compensation?
No, California law requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Consequently, such an agreement or "waiver" will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive. (Labor Code Section 1194)
3. What are the basic requirements for meal periods under California law?
Under California law, employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours. Unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer's premises, the meal period shall be considered "on duty," counted as hours worked, and paid for at the employee's regular rate of pay. An "on duty" meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
4. What are the basic requirements for rest periods under California law?
Employers of California employees covered by the rest period provisions of the Industrial Welfare Commission Wage Orders must authorize and permit a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer does not authorize or permit a rest period, the employer shall pay the employee one hour of pay at the employee's regular rate of pay for each workday that the rest period is not provided.
COMMONLY ASKED QUESTIIONS ABOUT SEXUAL HARASSMENT CASES
1. What is sexual harassment?
Sexual harassment under California and Federal law is generally defined as unwanted sexual contact of two main types: (a) quid pro quo harassment which occurs when employment is conditioned on the submission to unwelcome sexual advances, or (b) unwelcomed sexual
conduct that was severe or pervasive enough to create an abusive environment for the employee.
2. Who can sue for sexual harassment in the work place?
Any person who works for any company can sue for sexual harassment.
3. Does the sexual harassment have to be perpetrated by a member of the opposite sex?
No. Both male and female employees are protected by California sexual harassment laws and are protected from sexual harassment by a member of the same sex even if the perpetrator and/or the victim are not homosexuals.
4. Does there need to be actual touching for sexual harassment to occur?
No. Sexual harassment has been found to include a large range of inappropriate behavior including requests for sexual favors, unwanted sexual advances or propositions, verbal conduct, slurs or derogatory comments and comments about a person's body, appearance or sexual activity.
In fact, visual harassment, including leering looks, offensive gestures or derogatory posters, cartoons or drawings have been found sufficient to create a hostile environment.
5. Are sexual harassment cases limited to the work place?
No. The most frequent type of sexual harassment case arise out of an employment relationship; however, California has passed a special law which prohibits sexual harassment in a very wide range of business, service or professional relationships. California Civil Code section 51.9
lays out the relationships covered.
6. Does the sexual harassment have to be directed at me and how bad does it have to be for me to win my case?
Under California law, if sexual harassment permeates an employee's work environment, they may have a claim even if the harassing conduct is not directed at the employee personally, but occurs in the employee's presence.
However, whether the harassment is directed at the employee or someone else, for the plaintiff to be able to recover, they must establish that the harassment was severe or pervasive. The court will look at the frequency of the conduct; the severity of the conduct; whether the conduct was physically threatening, humiliating or was a mere offensive utterance; and whether the conduct reasonably interfered with the employee's work performance. The courts will generally hold that any sexual touching passes the severe standard.
7. Can I win a sexual harassment case if it is only my word against the perpetrator's?
Yes. Plaintiffs frequently prevail in "he said/she said" cases if the plaintiff is more credible than the perpetrator, although it does help if there are other witnesses to the sexual harassment or evidence that the perpetrator harassed other employees.
8. I'm scared to report the harassment because I fear that I will be retaliated against or fired. What should I do?
Don't worry. The California law protections against retaliation for reporting sexual harassment are even stronger than the laws that prevent the harassment from occurring. The law strictly prohibits an employer from retaliating against anyone who has opposed practices of sexual
harassment and/or discrimination or has filed a complaint, testified or assisted in any proceeding involving sexual harassment. If the employer retaliates, the employee has yet another cause of action to sue the employer and there has been a recent trend in California cases for employees to receive larger verdicts for the retaliatory conduct of the employer than for the original sexual harassment.
9. What do I need to do to protect my rights if I have been sexually harassed?
Generally it is wise to seek the advice of an attorney immediately. If you want to try to work it out within your company first, you should consult your employee handbook and procedure manual to learn of the appropriate way to report sexual harassment within your company. If there is no manual, and the company has a human resource department, it is generally wise to report the harassment to human resources, if the company has a human resource department.
Any report of the sexual harassment to the company should be in writing, detailing all of the acts.
An employee can bring a sexual harassment claim against a company while they are still working for the company. Before bringing a lawsuit, the employee must first file a claim with the Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC). The employee then has a choice of allowing the administrative agency to investigate or immediately obtain a right to sue letter.
Because the statute of limitations in sexual harassment cases is not very clearly defined, an employee should move quickly to find an attorney once they feel there has been sexual harassment. It is important that the administrative claims are filled out properly and an attorney can help in this regard.
10. Will my case have to go to trial?
Probably not. Over 90% of sexual harassment cases are settled prior to trial and a significant number are settled without litigation.