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Introduction
Understanding At-Will Employment
Discrimination & Hostile Work Environment
• Race, Religion & National Origin
• Gender
• Sexual Orientation
• Pregnancy
• Age
• Disability
Sexual Harassment
Retaliation & Whistle Blowing
Wrongful Termination & Discipline
Wage & Hour
• Exempt Employees vs. Non-Exempt Employees
• Specific Exemptions
• Employees vs. Independent Contractors
Family & Medical Leave
* * * * * *Introduction
While workplace litigation can generally be divided into several categories, it is important to remember that those categories can and often do overlap. Employers often violate several laws at once. It is also important to remember that employees can generally take action before termination, and they law protects them from retaliation if they do. Similarly, the law mandates that employers give an equal opportunity to each job applicant.
Compensation for violations of California employment law often include back pay, reinstatement, attorneys’ fees, court costs, unpaid overtime, compensatory damages for pain and suffering, and punitive damages. We usually handle these cases on a contingency fee basis, meaning we only get paid if our client gets paid.
Our employment lawyers handle workplace discrimination, harassment, termination and overtime (including exempt and non-exempt) law suits throughout the Los Angeles area (including Pasadena, Santa Monica, Glendale, Hollywood, Beverly Hills, and Burbank) and greater southern California (including Orange County, San Bernardino, Riverside, and San Diego).
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Understanding At-Will Employment
In California, if an employee is not a union member and does not have a contract guaranteeing employment for a specific length of time, the law presumes the employment relationship is “at-will.” This basically means that either the employee or the employer can terminate the relationship at will – i.e. at any time, without cause and without giving a reason. It also means that the employer is free to demote the employee or change other terms of the job.
While an employer can fire or demote an at-will employee without cause, this does not mean the employer can do anything it wants. An employer can never discriminate against an employee based on the employees’ race, religion, national origin, ancestry, gender, sexual orientation, pregnancy, age, disability, marital status, or family status. Nor can an employer unlawfully retaliate against any employee. Moreover, an employer can never deny an employee statutorily guaranteed leave, overtime, or other wages and benefits.
With respect to discrimination and retaliation, what matters is the employer’s actual intent. If an employer fails to give a reason for a decision or gives a false reason, surrounding facts and circumstances may nevertheless tend to show that the true motivation was unlawful discrimination.
In short, the legal protections described below apply to all California employees in every workplace, whether they are at-will or under contract.
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Discrimination & Hostile Work Environment
In California, employers have a duty to prevent discrimination against specific classes of employees and job applicants. Employers cannot allow employees to be treated differently based on any of the following bases:
Race, Religion & National Origin – Employees are protected even if they are discriminated against based on a false belief that they belong to a protected group of persons.
Gender (Sex) – Employers cannot make employment decisions based on a person’s gender. Similarly, they cannot require employees to behave in gender specific ways in the workplace - i.e. requiring an employee to talk, dress or act "more like a man" or "more like a woman."
Sexual Orientation – California law specifically protects heterosexuals, homosexuals (gays and lesbians), and bisexuals from sexual orientation discrimination. It further protects transsexual and transgender persons from discrimination.
Pregnancy – California employers must provide pregnancy leave and must also make reasonable accommodations for pregnancy related disabilities.
Age – It is illegal to discriminate against persons 40 years of age and older on the basis of their age.
Disability - The federal Americans with Disabilities Act ("ADA") and the California Fair Employment and Housing Act ("FEHA") mandate that employers make reasonable accommodations to allow employees with disabilities to work.
Similarly, employers cannot allow an intimidating or hostile work environment to exist with respect to these protected classes. Employers cannot condone or ignore threats, slurs, offensive "jokes," or offensive comments made by coworkers.
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Sexual Harassment
Workplace sexual harassment is very closely related to gender and sexual orientation discrimination and often results in a hostile work environment. For example, an employee may be subjected to unwelcome touching, sexual remarks, or even staring and leering.
In its simplest form, sexual harassment involves a “quid pro quo.” Employees should never have to submit to a sexual demand of proposition in order to get hired or promoted, avoid termination, receive work preferences, or receive some employment benefit.
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Retaliation & Whistle Blowing
California law protects employees who report discrimination, sexual harassment or other unlawful activities to their employers. It also protects “whistle blowers” who report unlawful workplace activities to government agencies. Employers cannot demote, terminate, harass or otherwise retaliate against employees for making such reports. It does not matter whether the reported activity involves the employee directly or whether the employee is acting on someone else’s behalf.
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Wrongful Termination & Discipline
Employers can never terminate or demote employees based on unlawful discrimination or retaliation. Thus, with respect to wrongful termination or demotion, it does not matter whether the employment relationship is at-will or not. The termination of an employee contrary to the terms of an employment agreement is also actionable as a breach of contract.
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Wage & Hour
Wage and hour claims most commonly arise in one of two ways. Employers sometimes improperly classify employees as exempt employees or independent contractors and thus avoid paying overtime and other benefits. In other instances, an employee is paid wages and benefits, but is not given adequate breaks or performs part of his or her work “off the clock.”
Exempt Employees vs. Non-Exempt Employees
By default, every employee in California is entitled to overtime pay for working more than 40 hours in one week or 8 hours in one day. An employer must pay overtime unless it can prove an employee is “exempt” from overtime requirements. There are a number of specific exemptions, described in more detail below.
Generally an employee is nonexempt unless he or she regularly exercises discretion and independent judgment, free from immediate supervision, regarding important business matters. In addition, all the exemptions have the following in common:
Employers bear the burden of proving employees are exempt.
An employee’s actual responsibilities, not job title, determine exemption status.
An employee with mixed responsibilities is still non-exempt as long as most of the employee’s responsibilities are non-exempt.
With very few exceptions, hourly employees are automatically non-exempt. Furthermore, even some salaried employees are non-exempt.
Trainees are generally non-exempt.
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Specific Exemptions
Executive Exemption - only applies to full-time, salaried employees who spend over half their time managing a department of a business, supervising other employees, and making hiring or firing decisions or recommendations.
Administrative Exemption - only applies to full-time, salaried employees who spend over half their time helping another exempt employee service a business in significant matters. Assistants and secretaries are generally non-exempt.
Learned or Artistic Professional Exemption - only applies to full-time, salaried employees who rely on a professional license or advanced degree to perform their work. Registered nurses, pharmacists and school teachers are generally non-exempt.
Computer Professional Exemption - only applies to employees working in highly theoretical, intellectual, or creative aspects of computer programming or systems analysis. In order to qualify as non-exempt, these employees must earn at least $47.81 per hour.
Salesperson Exemption - only applies to employees who usually work away from the office making sales.
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Employees vs. Independent Contractors
While employees are entitled to many benefits, including overtime and unemployment, independent contractors are not. An individual’s true classification does not depend entirely on his or her job title. Nor does it depend on a written agreement stating that he or she is an independent contractor. Instead, California courts focus primarily on the degree of control and independent judgment the person exercises in his or her work. Even if a person is called an independent contractor, he or she may actually be an employee entitled to full employment benefits.
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Family & Medical Leave
Depending on the number employees, employers may be legally required to provide employees with family and medical leave under either the federal Family Medical Leave Act or the California Family Rights Act. Employers cannot fire or otherwise retaliate against employees, even at-will employees, for exercising their leave rights under these statutes.
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* * * * * *
Although we are a Los Angeles based commercial litigation and employment law firm, our lawyers handle matters throughout greater southern California, including Orange County, Riverside County, San Bernardino County, and San Diego County. Work with the lawyer best suited to you, not closest to you. If you need a commercial lawyer or employment lawyer in Los Angeles or southern California, we are only a click or phone call away.
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