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California Break Laws

According to California Labor Code for Rest Breaks, Non-exempt employees are authorized and permitted to take a 10-minute paid rest break for every four hours worked or major fraction thereof. The Company authorizes and permits rest breaks according to the following schedule:

  1. A non-exempt employee who does not work more than 3.5 hours in a workday is not authorized and permitted to take a rest break.
  1. A non-exempt employee who works more than 3.5 hours in a workday but who does not work more than 6 hours in a workday is authorized and permitted to take one 10-minute rest break.
  1. A non-exempt employee who works more than 6 hours in a workday but who does not work more than 10 hours in a workday is authorized and permitted to take two 10-minute rest breaks.
  1. A non-exempt employee who works more than 10 hours in a workday but who does not work more than 14 hours in a workday is authorized and permitted to take three 10-minute rest breaks.

Whenever practicable, non-exempt employees should take their rest breaks near the middle of each four-hour work period. Non-exempt employees may not accumulate rest breaks or use rest breaks as a basis for starting work late, leaving work early, or extending a meal period. Non-exempt employees also may not leave work premises during a rest break.

Because rest breaks are paid, non-exempt employees should not clock out for them. Any non-exempt employee who is not authorized and permitted to take a rest break pursuant to the terms of this Policy should complete a California Meal Period and Rest Break Premium Request Form and submit it to his/her manager by the end of the pay period. Otherwise, the Company will assume the employee either took his/her rest break or voluntarily decided to waive it.

*Non-exempt employees who work more than 14 hours in a workday may be entitled to additional rest breaks.

Responsibilities

Non-exempt employees are expected to take their rest breaks in accordance with the applicable guidelines set forth in this Policy. Management is expected to make rest breaks available to their employees in accordance with this Policy. Supervisors can schedule rest breaks for their employees, taking into account their department’s operational requirements and employee needs. Supervisors are responsible for administering their department’s rest breaks in a fair and uniform manner. Supervisors may not pressure or coerce employees to skip their rest breaks.

Exceptions – Rest Break Violation

An exception exists under IWC Order 5-2001, Section 12(C) for certain employees of 24-hour residential care facilities, who may have their rest period limited under certain circumstances. Another exception to the general rest period requirement is for swimmers, dancers, skaters and other performers engaged in strenuous physical activities; such employees shall have additional interim rest periods during periods of actual rehearsal or shooting. For employees in certain on-site occupations in the construction, drilling, logging and mining industries, the employer may stagger the rest periods to avoid interruption in the flow of work and to maintain continuous operations, or schedule rest periods to coincide with breaks in the flow of work that occur in the course of the workday. In addition, for these employees, rest periods need not be authorized in limited circumstances when the disruption of continuous operations would jeopardize the product or process of the work. However, under such circumstances, the employer must make up the missed rest period within the same workday or compensate the employee for the missed 10 minutes of rest time at his or her regular rate of pay within the same pay period. Under Order 16-2001, rest periods must take place at employer-designated areas, which may include or be limited to the employee’s immediate work area.

Rest Periods For Lactation

Pursuant to Labor Code Section 1030, every employer, including the state and any political subdivision, must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time that does not run concurrently with the rest time authorized for the employee by the applicable IWC Order need not be paid. The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section. An employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer.

Missed Break Penalties – One Hour Of Premium Pay For Each Violation

Since our employee was misclassified as exempt from overtime, it is also likely that are employee was denied the required daily rest breaks. California Labor Code §512 provides that all non-exempt employees (those entitled to overtime pay) must be given a 10 minute rest break for every four hours worked (or major fraction thereof). If the employer violates Labor Code §512, the employee is entitled to one hour of pay ($20) for every day a meal period was not provided.

Pay Period Violations – Not Likely To Be Incurred, But Can Be

An employee can also seek penalties for the employer’s violation of California Labor Code §204, which requires California employers to remit payment of overtime wages no later than the payday for the next regular payroll period following the payroll period in which the overtime wages were earned. Although California Labor Code section 204 does not expressly provide for civil penalties, penalties can be obtained under California’s Private Attorneys General Act which provides for a $100 per employee per pay period for the initial violation, and $200 per employee for subsequent pay periods, plus reasonable attorney’s fees and costs.

If a California employer downsizes, conducts a mass layoff, closes a facility, or otherwise cuts a significant number of jobs, employees have certain rights. Unfortunately, employees don’t have a legal entitlement to keep their jobs, nor to be hired into other positions with the company or be considered for rehire. Employers are not prohibited from letting go off workers when financial times get tough.

However, employees do have the right to a certain amount of notice before a plant closing or large-scale layoff. If the employer fails to give proper notice, employees are entitled to damages.

The federal Worker Adjustment and Retraining Notification (WARN) Act give employees these rights. Almost half of the states have similar laws, and California is one of them. Although it doesn’t go as far as a few states, which require employers to pay a small severance or continue health benefits following a layoff, California law does expand the employers and employees who are entitled to advance notice of a layoff.

This article provides information on the rights of California employees under the federal WARN Act and California’s “mini-WARN” law. See the articles at our Losing or Leaving Your Job page for information on your other rights when you are laid off, including when you should receive your final paycheck, how to continue your health benefits, and more.

Covered Employers

WARN and California’s mini-WARN require certain larger employers to give advance notice of mass layoffs or plant closings that will result in a certain number or percentage of employees losing their jobs.

Under federal law, employers are covered only if they have at least 100 full-time employees or at least 100 employees who work a combined 4,000 hours or more per week. (Full-time employees are defined as those who work at least 20 hours a week and have been employed for at least six of the 12 months ending on the date when notice must be given under WARN.)

Under California law, employers are covered if they own an industrial or commercial facility that employs at least 75 employees.

Covered Layoffs

Not every layoff or plant closing is covered by federal or state law.

Federal WARN Act

WARN applies only to plant closings and mass layoffs.

  • A mass layoff is a reduction in force resulting in job loss at a single site of employment for 500 or more full-time employees, or for 50 to 499 full-time employees, if the number of employees laid off makes up at least 33% of the employer’s active workforce.
  • A plant closing is the shutdown of a single site of employment, or at least one facility or operating unit within a single site of employment, which results in job loss for 50 or more full-time employees during any 30-day period. A single site of employment is simply one geographical location of an employer’s operations, such as a building, an office suite, or a group of buildings that form a campus or industrial park. Even work areas that are physically separate can be a single employment site if they are reasonably close together, used for the same purpose, and share the same staff and equipment.

California’s Mini-WARN Act

California’s mini-WARN applies to the following situations:

  • A mass layoff, defined as job loss for at least 50 employees in a 30-day period.
  • The closing of an industrial or commercial facility with at least 75 employees
  • The relocation of an industrial or commercial facility with at least 75 employees to a location at least 100 miles away.

Required Notice

If a layoff or plant closing is covered by WARN or by California’s mini-WARN, employees who will lose their jobs are entitled to notice 60 days in advance. (Employees who are union members need not receive individual notice; instead, the employer must notify their bargaining reps, who are expected to pass the information along to the affected employees.)

The notice required is the same under federal and California law. It must provide specified information about the planned layoffs, including whether they are expected to be temporary or permanent, the expected date when the layoffs will begin and when the employee will receive a termination letter, and whether the employee will have bumping rights.

Exceptions To WARN Requirements

In some situations, an employer either does not have to give notice at all or can give less than 60 days’ notice.

No Notice Required

Neither WARN nor California’s mini-WARN apply to temporary or seasonal employees or to temporary projects that are completed, as long as the employees knew when hired that the jobs were for a limited time.

Under California law, an employer doesn’t have to give notice if the job losses were due to a physical calamity or an act of war. An employer also doesn’t have to give notice under state law if the employer was actively seeking capital that would have avoided or postponed any job losses at the time when notice should have been given. This exception applies only to plant closings and relocations.

Under federal law, WARN doesn’t apply to a plant closing or mass layoff resulting from a union strike or an employee lockout.

Shorter Notice Allowed

The exceptions noted above are the only ones recognized under California’s mini-WARN law. Under the federal WARN Act, employers may comply with WARN by giving as much notice as they can (even if they give less than 60 days’ notice) in a few situations. If an employer relies on one of these exceptions, it must give as much notice as possible and must state (as part of the written notice requirement) why it couldn’t give the full 60 days that would otherwise be required.

  • Unforeseeable business circumstances. If the business circumstances leading to the plant closing or layoff were not reasonably foreseeable when the employer should have given 60 days’ notice, a shorter notice period is allowed.
  • Faltering company. If a company is struggling financially when it should have given 60 days’ notice, it can give a shorter period of notice. However, the company must show that it was actively seeking business or money that would have allowed it to postpone or avoid the plant closing altogether, and that it reasonably believed, in good faith, that giving 60 days’ notice would have precluded it from obtaining the necessary business or money. This exception applies only to plant closings, not mass layoffs.
  • Natural disasters. If the layoff or plant closing results from a natural disaster, the employer is allowed to give less than 60 days’ notice.

Damages For Violating WARN And California Mini-WARN

An employer who violates either the federal or state WARN law may be ordered to pay all affected workers for all pay and benefits they lost for the period of the WARN violation, up to the full 60 days WARN requires. This amount is reduced by any wages earned or severance payments the employer made voluntarily during that time. For example, if an employer should have given 60 days’ notice, but gave notice only 40 days in advance of a layoff, employees would be entitled to 20 days of pay and benefits, unless the employer paid them severance covering that extra time.

Employers may also be ordered to pay the attorney fees and court costs of affected workers who sue and win. Employers who don’t give proper notice to the state may also have to pay fines, but this money goes to the state, not to employees.

If you believe your WARN rights have been violated, you should consult with an experienced California employment lawyer. WARN includes the right to attorney fees if you win, so it provides an incentive for lawyers to take strong cases. However, the damages available to any one employee are relatively low. Therefore, a lawyer may advise either trying to negotiate a settlement or going forward on behalf of all affected employees, as part of a class action lawsuit.

Effective January 1, 2012, a new California law creates large penalties for employers who “willfully” misclassify their workers as independent contractors. The new law comes amid a growing crackdown by the federal government and various states on employers who treat regular employees as independent contractors, thereby avoiding taxes and side-stepping various employment laws.

California Labor Code Section 226.8

The bill, SB 459 (Corbett), was signed into law by Governor Jerry Brown on October 9, 2011, and adds Sections 226.8 and 2753 to the California Labor Code. The new law does not change the test for determining whether a worker qualifies as an independent contractor, but it greatly increases the financial risk for employers who misclassify workers. Under Section 226.8, it is unlawful for any person or employer to engage in the “willful misclassification” of an individual as an independent contractor. “Willful misclassification” is defined as “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” Labor Code § 226.8(i)(4). In addition to the act of misclassification, each time a misclassified worker is charged a fee or has his/her pay reduced as a result of the misclassification, there is a new violation of Section 226.8.

Defining Independent Contractor

An independent contractor provides a good or service to another individual or business, often under the terms of a contract that dictates the work outcome, but the contractor retains control over how they provide the good or service. The independent contractor is not subject to the employer’s control or guidance except as designated in a mutually binding agreement. The contract for a specific job usually describes its expected outcome. Essentially, independent contractors treat their employers more like customers or clients, often have multiple clients, and are self-employed.

For some professionals, the line between employee and self-employed independent contractor is often blurred, and employers can classify workers as either. There are several different standards used to determine if an individual is legally an independent contractor. While the intricacies of contracting are too numerous for a comprehensive treatment and the applicability of the test depends on the specific workplace situation, generally, the independent contractor tests employed by the IRS and the Department of Labor (DOL) offer useful guidelines as to who is and who is not an independent contractor.

Reasons For Misclassification

The largest incentive for misclassifying workers is that employers are not required to pay Social Security and unemployment insurance (UI) taxes for independent contractors. These tax savings, as well as savings from income and Medicare taxes results in employers saving between 20 to 40 percent on labor costs. A report from the Treasury Inspector General for Tax Administration concluded that employers can save an approximate average of $3,710 per employee earning an annual income of $43,007 when they misclassify the employee as an independent contractor. There are a number of other advantages, beyond savings on state and federal tax costs, an employer may derive from misclassifying an employee, including:

  • Misclassifying employees as independent contractors can free employers from their legal responsibilities to their workers, such as providing a minimum wage, and abiding by hour laws, because employment and labor laws are based on traditional employee-employer relationships.
  • Employers may misclassify workers as a way to circumvent laws enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC protects the workplace civil rights of employees, including prohibitions of employment discrimination based on factors such as age, race, gender, or disability.
  • Employers can thwart union organizing or dilute bargaining units by misclassifying workers. Independent contractors are not covered by the National Labor Relations Act.
  • Independent contractors are usually not permitted to enroll in employer-based health and pension plans, allowing employers to save money on company provided benefits.
  • Employers may misclassify their employees to avoid having to verify that workers are U.S. citizens or covered by a work visa. By doing so, employers can ignore labor laws with impunity and exploit low-wage immigrant workers with few legal repercussions.

How Employers Will Be Affected

Penalties range from $5,000 to $15,000 per violation for isolated violations. Where there is a pattern or practice of violations, the penalty range increases—$10,000 to $25,000 per violation. Under new Section 2753, paid advisors (excluding attorneys and employees of the company) who “knowingly advise” employers to misclassify workers are jointly and severally liable for any penalties imposed on the employer as a result of the misclassification. In addition to the new costly monetary penalties, employers who violate the new law are required to post a “prominent” notice on their public website stating, among other things, that they have “committed a serious violation of the law” by willfully misclassifying employees, and directing any other employees who feel they have been misclassified to contact the Labor and Workforce Development Agency.

Independent Contractor Reporting Obligations

All businesses and government entities that hire independent contractors must file reports with the state Employment Development Department.

THE LAW EXPLAINED

The independent contractor reporting program is designed to locate parents who are delinquent in their child support obligations. Businesses operating outside California are subject to this law. For example, an independent contractor who works in California for a business based in Texas must be reported to California’s EDD.

PENALTIES

There is a penalty for each instance of late filing or failure to file the Report of Independent Contractors, unless there is good cause. The penalty increases if there is a conspiracy between the hiring entity and the independent contractor not to supply the required report or to supply a false or incomplete report.

How Employers Can Minimize Risk

As with other California labor statutes, this one identifies the Labor Commissioner as the enforcement agency, but permits employees to enforce their rights through the courts. Employers must therefore be mindful of the risk of classifying groups of workers as independent contractors, especially given the prevalence of wage/hour class actions in California. At a minimum, employers who regularly use independent contractors should consider obtaining arbitration agreements with class action waivers to minimize their exposure in this area. Independent contractor classification is a nuanced legal question, and the new penalties underscore the importance of receiving sound advice in this area. Additionally, in light of the new advisor liability provision, consultants and accountants who might otherwise offer their advice on how to classify workers should put this question to an employment attorney.

In California, overtime is any hours worked over 8 hours in a day or 40 hours in a week.  There is an exception if your company has instituted a bona fide alternate work week in which you normally work 10 hour days, 4 days a week – in which case the overtime is after 10 hours rather than 8, but still after 40 in the week.  This alternate work week must meet certain formalities and cannot be done on a person by person basis. Unless you meet an Exemption, California requires that all hours over 8 in a day or 40 in a week or worked on the 7th consecutive day of a work week be paid at 1.5 times an employee’s regular rate of pay.  In addition, hours worked over 12 in a day or hours over 8 worked on the 7th consecutive day in a week are paid at 2 times an employee’s regular rate of pay.

Exemptions

EXECUTIVE 

Employees must be primarily engaged in managing at least one recognized department or subdivision of a business, supervise two or more employees, and have authority to make significant personnel decisions.

PROFESSIONAL 

Employees must be licensed or certified by the State of California and primarily engaged in the practice of one the of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting. The professional exemption also includes employees primarily engaged in an occupation commonly recognized as a “learned or artistic” profession.

ADMINISTRATIVE 

Employees must be primarily engaged in performing non-manual work – other than routine clerical duties – relating directly to the business policies or general business operations of the employer. Such duties may include, by way of example, analyzing business data, planning, negotiating and purchasing.

The following exemptions, which are also relatively common, have their own compensation requirements, as described below:

COMPUTER PROFESSIONALS 

must be engaged in high-level work (such as the design, development, documentation, analysis, creation, testing or modification of computer systems or programs) and must be paid either on a salary or fee basis (as defined in the regulations) at a rate not less than $81,026.75 per year, or, if compensated on an hourly basis, at a rate not less than $38.89 an hour.

LICENSED PHYSICIANS AND SURGEONS 

Must be primarily engaged in duties that require licensure and must be paid at least $70.86 in 2012 (the rate is subject to adjustment annually).

OUTSIDE SALESPEOPLE 

Must spend more than 50% of their working time away from their employer’s place of business.

INSIDE SALESPEOPLE 

that are governed by Wage Orders 4 and 7 may be exempt from overtime requirements (but not from other wage and hour laws) if they earn at least 1½ times the minimum wage and earn more than half their compensation through commissions:

Overtime Requirements

Unless a non-exempt employee is covered by one of the three overtime exceptions discussed below, an employer must pay daily overtime to the non-exempt employee as follows:

  1. Time-and-a-half (i.e., one and one-half times an employee’s regular rate of pay) for:
  • All hours worked beyond eight hours, up to an including 12 hours, in any workday; and
  • The first eight hours worked on an employee’s seventh consecutive day of work in a workweek.
  1. Double time (i.e., two times an employee’s regular rate of pay) for:
  • All hours worked beyond 12 hours in a workday; and
  • All hours worked beyond eight hours on an employee’s seventh consecutive day worked in a workweek.

Weekly overtime remains in effect, requiring that employers pay time-and-a-half for all straight-time hours worked beyond 40 hours in a workweek.

New Overtime Regulations Proposed

The U.S. Department of Labor has announced plans to significantly alter its overtime regulations. The Fair Labor Standards Act (FLSA) requires most employers to pay their employees one and a half times their usual pay for time worked above 40 hours a week. The FLSA also exempts certain employees from overtime requirements—principally executives, administrative and professional employees, as well as salesmen who work outside the office. The FLSA charges the Department of Labor with defining these categories through regulation. Under the existing regulations, employers must pay overtime to all hourly workers. Employers must also pay overtime to salaried employees who either earn less than a certain amount (the salary test) or do not have sufficiently advanced job duties (the duties test). Employers must track the hours of any salaried employee eligible for overtime. The Obama Administration has proposed significantly increasing the salary test from $455 a week ($23,660 a year) to $970 a week ($50,440 a year). Employers would have to track the hours and pay overtime to any salaried employee making less than this amount—no matter how advanced their job duties.

Calculating Regular Rate Of Pay

  1. If you are paid on an hourly basis, that amount is the regular rate of pay.
  2. If you are paid a salary, the regular rate is determined as follows:
  • Multiply the monthly remuneration by 12 (months) to get the annual salary.
  • Divide the annual salary by 52 (weeks) to get the weekly salary.
  1. Divide the weekly salary by the number of legal maximum regular hours (40) to get the regular hourly rate.
  2. If you are paid by the piece or commission,either of the following methods may be used to determine the regular rate of pay for purposes of computing overtime:
  • The piece or commission rate is used as the regular rate and you are paid one and one-half this rate for production during the first four overtime hours in a workday, and double time for all hours worked beyond 12 in a workday; or
  • Divide your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours. For each overtime hour worked you are entitled to an additional one-half the regular rate for hours requiring time and one-half and to the full rate for hours requiring double time.
  1. A group rate for piece workers is an acceptable method for computing the regular rate of pay. In using this method, the total number of pieces produced by the group is divided by the number of people in the group, with each person being paid accordingly. The regular rate for each worker is determined by dividing the pay received by the number of hours worked. The regular rate cannot be less than the minimum wage.
  2. If you are paid two or more rates by the same employer during the workweek, the regular rate is the “weighted average” which is determined by dividing your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours. For example, if you work 32 hours at $11.00 an hour and 10 hours during the same workweek at $9.00 an hour, your weighted average (and thus the regular rate for that workweek) is $10.52. This is calculated by adding your $442 straight time pay for the workweek [(32hours x $11.00/hour) + (10 hours x $9.00/hour) = $442] and dividing it by the 42 hours you worked.

During the last couple of years, people have begun wondering what type of protection California provides to private sector employees when it comes down to issues such as retaliation or whistleblowing.

Well, so far, the general rule was that employees may be fired at any time, for any reason whatsoever, without the employers facing any legal issues whatsoever. However, in recent times, a couple of exceptions have appeared, these being released by courts, or the actual legislature. With this in mind, statuary protections are often given or cases such as discrimination, compensation etc. Based on this, it has been stated that an employer cannot fire an employee for a reason which is thought to violate the principles of the public policy.

What Activities Does State Law Protect?

To put things better into perspective, here are the activities which the state law protects: (1)  (2) refusing to violate a statute, (3) exercising constitutional rights, and (4) reporting statutory violations for the public’s benefit or performing a statutory obligation. Additionally, Californian employees have also been protected from retaliatory discharge for the following reasons: discussing wages, advocating health care, disclosing anti-trust violations, reporting overtime wage violations and exercising medical and family leave rights under the well-known Family Rights Act.

Together with this, whistle-blowers who go ahead and report illegal activities to their supervisors rather than law enforcement may be protected from time to time. To be fully protected however, a whistle-blower should report the activity to the competent law enforcement office. Other exceptions to the general rule which must be outlined include discrimination, the use of health care facilities, miscellaneous conduct, occupational safety and health, discussing worker’s compensation, and more.

How To File A Whistleblower Claim

At this moment in time, residents of California can go ahead and fill a whistle-blower or retaliation claim by filling a lawsuit in the appropriate court. Complaints for discrimination can be made with the California Department of Fair Employment and Housing, whereas occupational safety and health issues can be reported to the California Division of Labour Standards Enforcement. If worker’s compensation is the issue, then an employee can file a complaint with the California Division of Workers’ Compensation. Do keep in mind that the complaints should mostly be filled within one year of the issue- the quicker, the better.

 

Whenever it comes to the unlawful activity known as “retaliation,” employees should know how to define and handle it. Most of the employees are unable to identify retaliation. And if an employee is unsure what constitute retaliation under the law – if you can’t “see it” – retaliation becomes all the more difficult to prevent.

For example, a regional sales manager alleged she was repeatedly ordered by a male superior to terminate a female sales associate who, in the superior’s view, was not sufficiently attractive. The manager asked for an “adequate justification” before she would terminate the sales associate. After no justification was given the manager refused to comply with the termination order. In the manger’s lawsuit she stated she refused the order because she felt it was sex discrimination. Subsequent to her refusal to terminate the sales associate, she claimed she was subjected to increasingly hostile adverse treatment, which included management soliciting negative information about her and increased verbal and written criticism of her performance. The California Supreme Court concluded the sales manager sufficiently alleged facts to support her claim for retaliation and raised a triable issue she had been subjected to materially adverse employment actions.

“Adverse Employment Action” In Retaliation Cases

An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

The Supreme Court settled the definition of what is an adverse employment action in the retaliation context. This definition introduces the objective standard of a “reasonable employee” but includes the concept of “materially adverse.”

The United States Supreme Court has previously indicated that if harassment by a supervisor results in an “adverse employment action,” it is irrelevant whether the employer had preventive measures in place (such as a harassment policy) or whether the plaintiff unreasonably failed to utilize those measures. As a result, plaintiffs want to show that an adverse action took place, to make the employer strictly liable for the supervisor’s conduct.

The Supreme Court defined an adverse employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” This definition can be a surprise to plaintiffs who feel their workplace was significantly changed by supervisor harassment, only to find that the changes fail to meet this standard for a lawsuit.

The Sixth Circuit had previously held that a transfer would not ordinarily qualify without “a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”

Even so, the change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” In short, while leaving sufficient flexibility for unique facts, courts have generally looked for financial harm to show an adverse employment action.

The Court Resolved “Adverse Employment Action”

The Supreme Court resolved this long standing dispute among lower courts as to the definition of “adverse employment action.” The court held, an employer may not fire, demote, harass or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. The Supreme Court also held courts should look at the totality of the employer’s action to see if they rise to the level of having a material impact on the employee. First “material impact” does not require the employee suffer an economic detriment or psychological injury to state a claim for retaliation. Second, there is no requirement the employer’s retaliation constitute one swift blow, rather than a series of subtle, yet damaging injuries.

“The Expansion Of “Protected Activity”

Retaliation claims can be based on a wide variety of activities protected under both state and federal law. The protected activity could be opposing an employment practice prohibited by state or federal statute, rule or regulation; such activities include refusing to take part in a prohibited act, engaging in public protests and writing letters to officials who lack any responsibility to act on the charges. The protected activity could also be filing a charge, testifying, or assisting or participating in an investigation, proceeding or hearing of the employee’s own claim of unlawful conduct or the claim of another employee under a statute or regulation that prohibits retaliation for such conduct. In addition, an employer’s own policies can be the basis for retaliation claims.

With the gradual expansion of FEHA and many other employment laws, it is not uncommon to find that an employee deserving discipline, discharge, or other adverse action also happens to be in a protected class. While in most cases the protected class does not insulate the employee from legitimate action, such matters must be handled with great care.

Given that a request for religious or disability accommodation will now become a protected activity, it is important that employers continue to train supervisors and human resources personnel to identify and document any requests for accommodation. It remains important for employers to attempt to engage in an interactive process with requesting employees and to carefully analyze each request for accommodation. Management employees should recognize that employees may argue that adverse actions taken at or around the time of an accommodation request are retaliatory. As always, it is helpful to document legitimate business reasons for taking adverse action.

Lowering The Bar In Retaliation Claims

Now the court decision has lowered the bar in Retaliation Claims, employ­ers can expect the number of retaliation charges to increase even further. Because plaintiffs are no longer required to show that they suffered an adverse “ultimate” employment action, many of the claims courts would have rejected under pre-Burlington standards are now likely to succeed.

At the very least, the focus on the de­terrent effect of employer actions, rather than simply on the actions themselves, may help employees survive summary judgment and get to a jury because “the significance of any given act of retalia­tion will often depend upon the particu­lar circumstances.

The page explains that, in evaluating a workplace sexual harassment case, the most important issues to California sexual harassment attorneys are: supervisor, or manager sexual harassment – For the purposes of strict liability sexual harassment managers, supervisors and lead persons are individuals having the authority, in the interest of the employer to hire employees, fire employees, transfer employees, suspend employees, layoff employees, promote employees, discharge employees, adjust their grievances, discipline them, reward them, effectively recommend any of these actions, and to direct them.

Our sexual harassment lawyers have had considerable case success holding employers liable for sexual harassment done by so-called, “Team leads” and lower level supervisors who have the authority to direct the flow, assign the sexual harassment victim work, or maybe schedule the sexual harassment victim. Sometimes the lower level supervisors are liable for sexual harassment because they are thought of as supervisors by the sexual harassment victim. Lower level management may also be liable for sexual harassment if they are the employee the sexual harassment victim must call if they are going to be absent, or ask permission to leave early.

Harassing Behavior

The Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of violations:

·         Unwanted sexual advances

·         Offering employment benefits in exchange for sexual favors

·         Making or threatening reprisals after a negative response to sexual advances

·         Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters

·         Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes

·         Verbal sexual advances or propositions

·         Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations

·         Physical conduct: touching, assault, impeding or blocking movements

California Sexual Harassment Law

The law recognizes two types of sexual harassment:

·         Quid pro quo harassment: When sexual favors are demanded by a supervisor or manager as a condition of employment, such as a promotion.

·         Hostile work environment: When an employer knowingly allows a hostile, offensive, oppressive or intimidating work environment based on sex to continue, and which adversely affects an employee’s ability to work.

The vast majority of sexual harassment victims are women, but men can suffer the effects of these behaviors too. This type of harassment usually involves a group of employees.

Employer Liability

All employers are prohibited from harassing employees in the workplace. If harassment occurs, an employer may be liable even if management was not aware of the harassment. An employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and there was a program to prevent harassment. If the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers are strictly liable for harassment by their supervisors or agents. The harasser can be held personally liable for damages. Additionally, Government Code section 12940, subdivision (k), requires an entity to take “all reasonable steps to prevent harassment from occurring.” If an employer has failed to take such preventative measures, that employer can be held liable for the harassment. A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.

Employer Obligations

All employers have a legal obligation to prevent sexual harassment.

  • Employers must take all reasonable steps to prevent discrimination and harassment from occurring.
  • Employers must help ensure a workplace free from sexual harassment by posting in the workplace a poster made available by the Department of Fair Employment and Housing.
  • Employers must help ensure a workplace free from sexual harassment by distributing to employees information on sexual harassment. An employer may either distribute a brochure that may be obtained from the Department of Fair Employment and Housing or develop an equivalent document, which must meet the following requirements:
  • The illegality of sexual harassment
  • The definition of sexual harassment under state and federal laws
  • A description of sexual harassment, utilizing examples
  • The internal complaint process of the employer available to the employee
  • The legal remedies and complaint process available through the Department and the Fair Employment and Housing Commission
  • Directions on how to contact the Department and the Fair Employment and Housing Commission
  • The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the Department or the Commission
  • # Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005 and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.

Enforcement Of The Law

Employees or job applicants who believe that they have been sexually harassed may, within one year of the harassment, file a complaint of discrimination with the California Department of Fair Employment and Housing. The Department will investigate the complaint and attempt to resolve the disputes. If the Department finds evidence of sexual harassment and settlement efforts fail, the Department may file a formal accusation against the employer and the harasser. The accusation may lead to either a public hearing before the Fair Employment and Housing Commission or a lawsuit filed on the complainant’s behalf by the Department. If the Commission finds that harassment occurred, it can order remedies, including up to $150,000 in fines and/or damages for emotional distress from each employer or harasser charged. In addition, the Commission may order hiring or reinstatement, back pay, promotion, training, and changes in the policies or practices of the involved employer. A court may order unlimited damages.

 

Any employee can sue their employer for WRONGFUL DISMISSAL, which includes:

  • Full-time
  • Part-time
  • Employees on probation

Wrongful dismissal is what it is called when you are fired UNFAIRLY.

What Is Meant By Unfairly?

  • Fired without notice
  • fired without just cause (proper reasons)
  • fired without warning that work was wrong or substandard
  • Fired because you are not prepared to accept a big change in your job. For example:
  • Lower wages,
  • Reduced or significantly different working hours
  • Different duties
  • You cannot sue if you are a worker on a contract for a fixed period or if you are a member of a union. For example,

 

  • If you are hired to work for 8 weeks and at the end of the 8 weeks, your employment is not continued, you do not have a claim.
  • If you are a seasonal worker and you are not taken back by the employer in another season, you do not have a claim.
  • If you are a unionized worker, you cannot sue. Contact your union for advice and assistance as soon as possible if you have been terminated.

What Does Suing Get You?

  • In a court case in Small Claims Court the only thing that you can get is a damage award which means money. You cannot get your job back. The amount of damages is normally based on the amount of time you have been with the employer, your age, and the type of work you performed. A rough rule of thumb is that you should sue for 1 month’s wages for every year you have worked there. You should also include your vacation pay for the notice period. It is quite possible that the judge will actually give you less or more than one month’s wages for each year you were employed.
  • In addition to wages, you can also get the cost of benefits for the same period of time. If you had a medical/dental plan and you are claiming for 4 months of pay, you could also claim the cost of your medical/dental plan for a 4-month period.
  • You are also entitled to claim expenses for the cost of job searching for other work.

What Do You Need To Prove Your Case?

  • The first thing you have to prove is that you are an employee. That can normally be done by:
  • Your letter of termination;
  • Your employment insurance record of employment;
  • Pay stubs.
  • You must show that you were terminated without proper notice. Your employer will then have to prove that you were fired for “just cause.”
  • The categories of JUST CAUSE that the Courts say allows an employer to fire a worker are:
  • serious misconduct:

 

  • Theft
  • Fraud and dishonesty
  • Serious and insubordination (that means disobeying your supervisor in a serious matter)
  • Breach of employer’s rules that are reasonable and consistently enforced by the employer
  • Persistent absences and lateness from work without medical or other good reason
  • Sexual harassment
  • Incapacity to perform work:

 

  • Serious incompetence
  • Permanent illness or injury that cannot be accommodated by the employer without undue hardship, and is likely to continue indefinitely
  • Your employer is not entitled to fire a worker without proper notice because:

 

  • He feels like it
  • He has no reason
  • He has not given the worker an opportunity to improve
  • He has a personality conflict
  • Times are bad or there’s not enough work
  • An employer cannot lay you off for an indefinite period without notice or paying your wages.
  • In the experience of Community Advocacy & Legal Centre, most employees are let go because the employer develops a dislike for the employee. He may feel the employee doesn’t try hard enough, or has the wrong attitude. An employer cannot do this without notifying the employee about what he doesn’t like, and giving the employee a reasonable chance to improve. The employer fails to do this in almost all cases.

Whistleblower – Wrongful Termination

Whistle blowing has gotten a lot of attention in recent years due to the popularity of movies like “The Informant” starring Matt Damon, and “The Insider” starring Russell Crowe. But anyone can be a whistleblower–and the law states that it is illegal to fire an employee, or to engage in retaliation against an employee, for whistle blowing. Any person who “interferes” with the livelihood of an employee, who has provided information to legal authorities regarding alleged illegal activity of their employer, is subject to up to 10 years in prison and up to $250,000 in fines.

Constructive Termination

People who have suffered a job loss or layoff are often shocked and panicked. However, there are usually benefits available to those individuals who have lost their jobs due to a layoff, such as unemployment compensation, and in some cases other federal and state benefits. For employees who quit their jobs, help is usually not available, which means some employees suffer in miserable jobs until they can’t take it anymore and quit.

Unfortunately, in some situations, an employer may make the working environment purposely miserable in hopes that an employee will quit. An employer may want an employee to leave the workplace, but may not feel comfortable firing the employee or laying him or her off. There could be a lot of reasons the employer would rather the employee quit than be fired – maybe the employee has a contract that prevents the employer from terminating him or her. Maybe the employer doesn’t wish for the employee to get unemployment compensation, fearing that would cause the unemployment compensation insurance rates to increase, or their rating to decrease. In those cases, the employer may purposely decide to make the job so intolerable that the employee chooses to quit. In that situation, a “constructive discharge” may have occurred. If an employee can show that a constructive discharge has occurred, the employee may be eligible for back pay and benefits, as well as compensation for legal expenses and damages.

Money Damages

What earnings have you lost because you were fired? This element of damages includes the pay you would have received if your employer had not fired you, as well as any earned and unpaid wages, overtime, or other compensation the employer has withheld.

However, this amount is reduced by any money you earned after being terminated. If you get re-hired at the same or a higher rate of pay at some point after the termination, you won’t have any more lost pay as of the date of re-hire. If you get re-hired at a lower rate of pay, you will continue to have lost pay damages, equal to the difference between what your old job paid and what you are earning at your new job. For example, if you are out of work for one month, you count that full month of lost pay at the former pay rate. If you get a new job but are paid $1,000 per month less than at the former job, your lost pay damages continue to add up at the rate of $1,000 per month. Lost bonuses may also be a part of this element of damages.

 

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