Employment Law FAQ
Employment law is one of the most complicated areas of law in California. At Ferraro Vega San Diego Employment Lawyers, we want California employees to understand their legal rights and the protections they are granted. The following are some of the most frequently asked questions we receive at our law firm.
Is California an “At-Will” State?
An at-will state is a state in which an employer may fire employees at any time and at any reason. The only exception is an employee can’t be fired for retaliatory, discriminatory, or illegal reasons.
California is an at-will state, but there are some other exceptions including:
- Public-sector employees usually protected by civil service laws or a union agreement
- Employees who are represented by a union with a collective bargaining agreement with a “just cause” termination standard
- Employees who have an employer that has said or done something to overcome the presumption of “employment at will.” An example is a progressive discipline policy in which an employee isn’t terminated until a series of lesser forms of discipline and warnings are imposed.
Note that employment at will is different than “right to work.” California does not have a “right to work” law that bars union-represented employees from being forced to pay union dues.
If an employer fires an employee for a protected act or due to retaliation or discrimination, it can be considered wrongful termination. You may have a claim against your employer in these cases.
What is a PAGA Claim?
The Private Attorneys General Act (PAGA) gives employees in California the right to sue their employer to recover civil penalties on behalf of themselves, other employees, and the state. PAGA essentially deputizes workers to act as private attorneys to enforce the labor code.
With a PAGA claim, you can bring an individual or class-action claim against an employer. If successful, 75% of the penalties recovered go to the State of California and 25% go to employees.
What Reasonable Accommodations Must a San Diego Employer Make and When?
The California Fair Employment and Housing Act (FEHA) makes it illegal for an employer to terminate, fail to hire, or offer lower pay to an employee based on a disability or religious affiliation with few exceptions. Employers are also required to make reasonable accommodations when possible. However, it can be difficult to understand exactly what is considered reasonable and who is entitled to accommodation.
FEHA defines reasonable accommodations for a “known physical or mental disability” as making the facilities the employee uses readily accessible and usable by people with disabilities. A reasonable accommodation may involve certain types of job restructuring such as adjusting policies or exams or a modified work schedule.
A reasonable accommodation may be offering a ground floor office to an employee who uses a wheelchair, installing devices on office doors to make them accessible, or excusing a disabled employee from specific tasks.
If an employer can show that an accommodation would cause an undue hardship, they are not required to provide it.
An employer may accommodate a worker’s religious beliefs in several ways such as adjusting the work schedule of a Jewish employee so they are not required to work on the Sabbath or allowing religious garments when appropriate.
What Counts as Sexual Harassment at Work?
All types of sexual harassment in the workplace violate California employment law. The law also requires employers to train supervisors on preventing and handling harassment.
There are two main types of sexual harassment:
- Hostile work environment harassment. Any employee can make a hostile workplace and there does not need to be a threat of adverse employment action. This type of sexual harassment can involve any type of unwelcome conduct based on sex that creates a hostile or offensive work environment. You do not need to be the target of the harassment to be a victim of a hostile work environment.
- Quid pro quo harassment. This refers to a supervisor that implies or expressly requires a subordinate employee to submit to sexual advances through threats of adverse employment action. Only a manager, supervisor, or employee above the position of the victim can commit quid pro quo harassment.
It’s important to note that sexual harassment does not need to involve sexual advances or unwelcome physical contact. Frequent lewd jokes or conduct based on gender, such as bullying a coworker based on their gender, can also qualify.
What Protection Do I have Against Workplace Retaliation?
Under California employment law, you are protected from employer retaliation for protected activities:
- Reporting law violations such as employment law violations or other conduct that is illegal
- Complaining about, opposing, or participating in an investigation of discrimination or harassment
- Requesting reasonable accommodations for religious beliefs or a disability
- Filing or helping with a qui tam lawsuit under the California False Claims Act
- Refusing to follow an order you reasonably believe is discriminatory or illegal
- Intervening to protect others from harassment
Retaliation can occur when an employer punishes an employee for any type of legally protected activity. This may be a demotion, termination, reassignment, salary reduction, or discipline. It may also be more subtle such as being excluded from staff meetings or poor performance reviews.
You have the right to sue your employer for retaliation if you were engaged in a protected activity, you were subjected to an adverse employment action (such as termination or demotion), and the two were related.
What Meal and Break Time Rights Do I Have in California?
If you are a non-exempt employee in California, you have the right to a 30-minute meal break every five hours of work per day. You are also entitled to a 10-minute break per four hours of work. The first meal break must be available within the first five hours of work. If you work more than 10 hours in a day, you have the right to two meal breaks.
Employers often violate meal and break time protections by not allowing employees to take breaks or making them work through breaks. Employers may even misclassify employees as independent contractors so they do not have to offer breaks.
If you have been misclassified or you are not receiving the meal and break time you are entitled to, contact a San Diego employment lawyer right away.
Can I Sue My Employer If They Retaliate or Discriminate Against Me For Taking FMLA Leave?
The Family and Medical Leave Act (FMLA) is a federal law that allows you up to 12 weeks of unpaid leave within a 12-month period for certain medical and family reasons. This includes adoption, the birth of a child, a serious medical condition, or a need to care for an immediate family member. California also has two state laws mirroring this federal protection: the California Family Rights Act and the New Parent Leave Act (NPLA).
Employers must abide by these federal and state laws. They cannot discriminate or retaliate against an employee rightfully using their FMLA leave. When your FMLA leave ends, you are entitled to return to the same or an equivalent position with very few exceptions.
Has your employer refused to grant FMLA leave, demoted you, fired you, or otherwise retaliated against you over FMLA leave? You may have the right to file a lawsuit.
Contact a San Diego Employment Lawyer for a Free Consultation
Do you suspect your employer has violated wage and hour laws? Did they illegally discriminate or retaliate against you? Contact Ferraro Vega today at (619) 693-7727 for a free case review with an employment law attorney in Southern California who will offer sound legal advice and help you determine if you have a case.