Archive for the ‘ Employment Law ’ Category

FAQs About Unpaid Overtime Wages In California

Posted on: April 14, 2018 by in Employment Law
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The state of California now has a confusing patchwork of wage and overtime laws.

Understanding your employment rights under these laws is imperative for anyone whose employer isn’t properly paying wages and overtime.

Is your employer paying you everything that you’ve earned?

WHAT PROTECTS WORKERS’ RIGHTS IN CALIFORNIA?

The federal Fair Labor Standards Act (FLSA) of 1938 protects every worker’s wage, hour, and overtime rights. Employees in California enjoy a number of additional legal protections under state law.

But despite federal and state laws, some employers in California still try to cheat their employees out of overtime pay. When employees can prove that they’ve been cheated, the courts in California will hold the employers accountable.

If you believe that you are not being paid properly by your employer in this state, discuss your case and your rights at once with an experienced San Francisco employment rights attorney.

Here are the most frequently-asked questions about overtime and the law in California – and the answers to those questions:

Q: WHAT ARE CALIFORNIA’S MINIMUM WAGE AND OVERTIME RULES?

A: The state-level hourly minimum wage increased to $11 on January 1, 2018 for employers with 26 or more employees. For employers with 25 or fewer employees, the state-level hourly minimum wage rose to $10.50.

California’s state-level hourly minimum wage will keep rising until 2022, when it becomes $15 an hour for the employers with 26 or more employees. Beginning in 2023, the state-level hourly minimum wage that all California employers must pay will be $15 an hour.

Q: MAY LOCAL JURISDICTIONS SET THEIR OWN MINIMUM WAGE LAWS?

A: Yes. Many county and city governments in California have established their own minimum wage rates which exceed the state’s minimum wage requirements.

Every local minimum wage ordinance is unique. It’s a growing trend across California.

The City of Emeryville, for example, currently requires employers with 56 or more employees to pay a minimum wage of $15.20 an hour. That rate will increase to $15.60 in July, and smaller Emeryville employers will have to pay employees $15 an hour also beginning in July.

As you can see, wage and overtime laws are quite complicated in this state. Employees working under an employment contract and certain white-collar workers may be exempted from wage and overtime regulations.

Q: WHAT IS OVERTIME? WHAT ARE OVERTIME WAGES IN CALIFORNIA?

A: Eight hours of labor constitutes a day’s work in California, and work beyond eight hours in any workday or more than six days in any workweek is considered overtime.

One and one-half times an employee’s regular rate of pay must be paid for all hours beyond eight hours in a day and for the first eight hours on the seventh consecutive day of work in a workweek.

Employees must be paid at twice their regular rate pay for all hours worked beyond twelve hours in any workday and for all hours beyond eight hours on the seventh consecutive day in a workweek.

There are also some exceptions that allow overtime to be paid on a different basis in some very specific circumstances.

Q: ARE EMPLOYERS OBLIGATED TO PAY FOR UNAUTHORIZED OVERTIME?

A: The answer is yes. California requires employers to pay for overtime, whether or not it was authorized, at the overtime rate specified by law.

Employers may discipline employees who work overtime without authorization, but the law requires payment for all hours an employee is “suffered or permitted to work, whether or not required to do so.”

Q: ARE BONUSES CONSIDERED “REGULAR” PAY FOR OVERTIME PURPOSES?

A. A nondiscretionary bonus is considered regular pay when it is based upon hours worked, proficiency, or production.

Discretionary bonuses or sums paid as gifts, when those sums are not dependent on hours worked, production, or efficiency, are not included for purposes of determining the regular rate of pay.

Q: WHAT TYPE OF REMUNERATION IS NOT CONSIDERED “REGULAR” PAY?

A: Remuneration that is not added into the calculation of regular pay includes reimbursements for expenses, sums paid as gifts for special occasions, payments made for periods when no work is performed due to vacation, holiday, illness, or the employer’s failure to provide sufficient work.

Q: CAN OVERTIME EVER BE OWED TO SALARIED EMPLOYEES?

A. The answer to that question is, “It depends.” Salaried employees must be compensated for overtime unless they are exempt under federal and state laws.

Some employees may also be specifically exempted from overtime by order of the California Industrial Welfare Commission.

Q: CAN CALIFORNIA EMPLOYERS REQUIRE OVERTIME?

A: Yes, California employers may determine the work schedules and hours of their employees. In most cases, an employer may discipline – and even terminate – an employee who refuses to work overtime.

Q: CAN EMPLOYEES WAIVE THEIR RIGHT TO OVERTIME PAY?

A. Not in California, where the law requires employers to pay employees full overtime compensation – notwithstanding any particular employee’s private agreement or consent to work for a lower rate of pay.

Q: HOW SOON ARE EMPLOYERS REQUIRED TO PAY OVERTIME?

A: Overtime wages must be paid no later than the payday for the next regular payroll period after which the overtime wages were earned, or, for employees who are paid on a weekly, biweekly, or semimonthly basis, not more than seven calendar days following the close of the pay period.

Q: IF YOUR EMPLOYER ISN’T PAYING YOU PROPERLY, WHAT CAN YOU DO?

A: You may file a wage claim with the Division of Labor Standards Enforcement, or you can file a lawsuit to recover lost wages. The smart move is discussing your case with an employment rights attorney, and then adhering to that attorney’s recommendations.

Q: HOW CAN YOU PROTECT YOURSELF IF YOUR EMPLOYER RETALIATES?

A: If an employer retaliates or discriminates against you for filing a wage claim or for speaking to an attorney about your rights, that employer is violating the law. Speak to an employment lawyer who can protect your rights and hold your employer accountable.

Q: HOW CAN AN EMPLOYMENT LAWYER HELP?

A: Shady employers might tell you to work “off the clock.” They might even alter your time sheet or try to pay you straight time for overtime.

If you’re being cheated by an employer in California, or if you’re not sure, let an experienced employment attorney review your case and provide the advice – and if necessary, the representation – you need.

If you work in California, you work hard. The people of California do not tolerate unethical employers, so if you are being cheated and you take legal action, the law will be on your side.

If your employer is violating the law and you aren’t being paid what you’ve earned, you must stand up for your rights. A good employment lawyer can help.

Getting Fired While Sick – Is It Illegal?

Posted on: February 19, 2018 by in Employment Law
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Most employees in California are at-will employees who may be terminated “at-will” for any reason, unless that reason is illegal.

You could even be fired from your job while you are taking sick leave, but you cannot be fired because you took the leave – if you were entitled to it – or because of your illness or disability.

Without an employment contract or a union agreement, employment is at-will in this state. Firing an employee is illegal in California only in a very few specific circumstances.

In most cases, for example, an employer may legally fire an at-will employee for too many absences, but if those absences are protected by federal or state law, the firing is illegal.

WHAT FEDERAL LAWS PROTECT EMPLOYEES WHO ARE SICK OR INJURED?

The Family and Medical Leave Act (FMLA) gives employees who are qualified twelve weeks of unpaid leave in a twelve-month period to care for a new child or deal with a “serious health condition.”

A “serious condition,” as defined by the U.S. Department of Labor, is a condition that requires hospitalization or “continuing treatment” that requires more than three days away from work.

Employees who need unpaid FMLA leave must give their employers at least thirty days’ notice when at all possible. The FMLA applies only to employers with at least fifty employees.

Those employers may not discipline, retaliate against, or fire employees who take FMLA leave, and generally speaking, employees are allowed to return to and resume their jobs.

ARE YOU A VICTIM OF WRONGFUL TERMINATION?

If you missed work because of an injury or a serious health condition, and you took sick leave, and your employer terminated you for that reason, you may be a victim of wrongful termination.

If you believe that you have been fired in California for any reason that is illegal, arrange now to discuss your case and your rights with an experienced San Francisco employment rights attorney.

HOW DOES THE “ADA” PROTECT SICK AND INJURED WORKERS?

Your job may also be protected if you take sick days for a condition that is defined as a disability by the Americans with Disabilities Act (ADA).

The ADA bans employment discrimination against employees with physical or mental disabilities – impairments that considerably restrict an important bodily function or life activity.

The ADA does not explicitly require employers to grant leave to disabled employees, but it does mandate “reasonable accommodations” that allow disabled employees to perform their jobs.

Depending on the situation, time off from work might be a “reasonable” accommodation for a disabled employee, provided that it does not impose an “undue” hardship on the employer.

WHAT STATE LAW PROTECTS EMPLOYEES WHO ARE SICK OR INJURED?

Under California’s “Healthy Workplace Healthy Family Act” of 2014, California employers provide employees with one hour of paid sick leave for every thirty hours of work.

With several key exceptions, California’s “Healthy Workplace Healthy Family Act” of 2014 applies to almost every California business.

Workers may use these sick days to care for ailing loved ones and for preventative care as well as current medical conditions. Workers may use their sick days after ninety days of employment.

Employers may restrict the use of paid sick leave to 24 hours (or three workdays) for each year of employment, and employers are not required to pay unused leave when employment ends.

TO WHAT EXTENT ARE CALIFORNIA EMPLOYEES LEGALLY PROTECTED?

Although employees in California certainly enjoy more legally-protected employment rights than employees in most other states, that legal protection is not absolute.

For example, a disabled employee may not be fired  or stripped of any employee benefits for being disabled, but in a general lay-off, being disabled (or belonging to any other protected group) is no protection against being laid off.

Additionally, if an employee has not complied with an employer’s policies about leave – such as taking leave without notice – that noncompliance may provide a legal reason for termination.

And while someone cannot be terminated for taking protected medical leave, taking leave is not a protection against being fired for some other reason.

IF YOU ARE WRONGFULLY TERMINATED, WHERE CAN YOU TURN?

We’ve discussed several federal and state laws that can protect employees in California from being fired for taking sick days.

If an employer fired or threatened to fire you or retaliated against you in any way because you were sick and took leave, speak now to an experienced San Francisco employment rights attorney.

An employment rights lawyer can review the details of your wrongful termination claim, explain your employment rights and legal options, and – if it is warranted – help you take legal action.

WHAT ARE YOUR RIGHTS AS A WRONGFUL TERMINATION VICTIM?

As a wrongful termination victim, you may be entitled to return to your job, and you may also be compensated for your lost wages and emotional suffering. You are absolutely entitled to justice.

If you have been fired illegally in California, an employment lawyer will have a number of effective legal strategies for contesting your wrongful termination.

WHAT WILL AN ATTORNEY DO ON YOUR BEHALF?

Usually, attempting to negotiate an out-of-court settlement with the employer is the first step.

Out-of-court settlements are routine, and they save everyone a great deal of money and time. When an employee’s wrongful termination claim is strong, an out-of-court settlement is likely.

However, if a fair and reasonable settlement is not offered, your attorney may recommend taking your case to court. Each case is different, so it is imperative to heed your lawyer’s advice.

If you have been wrongfully terminated, and you can’t immediately find other work, you could quickly be unable to meet your responsibilities – because your employer broke the law.

WHEN DO YOU NEED TO ACT?

That is why you must seek legal help as swiftly as possible if you believe that you’ve been terminated for an illegal reason in California.

In fact, if you are the target of any employment or hiring discrimination in California, you’ll need someone who can fight for justice on your behalf.

The state of California does not tolerate wrongful termination, and if you have been wrongfully terminated in this state, the law is on your side, but you’ll have to take the first step on your own.

IF YOU’VE BEEN WRONGFULLY TERMINATED, WHAT’S THE FIRST STEP?

You have the right to seek justice and the right to an attorney.

With your job, career, and future at stake, you must exercise those rights. If you’ve been wrongfully terminated in California, don’t wait. The time you have to take legal action is limited.

Talk to an employment rights attorney now.

The Rights Of Pregnant Employees In California

Posted on: January 19, 2018 by in Employment Law
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For many women, a pregnancy is a joyful event, but unfortunately, too many employers still see pregnancy as an inconvenience, and women who are pregnant are still sometimes the targets of employment discrimination.

If you are pregnant or become pregnant, what are your rights?

If you are employed in the state of California, keep reading to learn more about your rights as a pregnant employee.

No one in 2018 should have to deal with pregnancy discrimination.

In every state, when employers treat a job applicant or employee differently because that person is pregnant, it is against the law.

If you are facing pregnancy discrimination at your own workplace in California, it should not be tolerated, and a California employment rights attorney can help.

WHAT ARE THE RIGHTS OF PREGNANT EMPLOYEES?

Legally speaking, in all fifty states, employers must treat pregnant women exactly as they treat other employees or job applicants who cannot perform their jobs for short periods of time.

An employer may not deny employment to a woman because she is pregnant, and an employer cannot terminate an employee’s job or remove any benefits or accrued seniority because the employee is pregnant or takes a maternity leave.

Employment discrimination based on pregnancy is against the law in California and every other state, so if you believe that you are or have been a target of employment discrimination based on pregnancy, you should discuss your legal rights and options immediately with an experienced San Francisco employment rights attorney.

Your attorney can review your situation and recommend your best legal option – which might include an employment discrimination lawsuit.

HOW ARE THE RIGHTS OF PREGNANT EMPLOYEES LEGALLY PROTECTED?

Two federal laws protect pregnant employees in every state. The Pregnancy Discrimination Act of 1978 (PDA) amends the Civil Rights Act of 1964 to “prohibit sex discrimination on the basis of pregnancy.”

The Pregnancy Discrimination Act, however, only provides protection from employment discrimination; it provides no benefits, and it covers only those employers with fifteen or more employees.

A second federal law, the Family and Medical Leave Act of 1993 (FMLA), requires most employers with fifty or more employees to provide up to twelve unpaid weeks of leave after the birth or adoption of a child.

A pregnant employee is eligible for the Family and Medical Leave Act if she has worked for the employer for at least twelve months and for at least 1,250 hours in the preceding twelve months.

While the Pregnancy Discrimination Act applies only to employers with fifteen or more employees, and the Family and Medical Leave Act covers only those employers with fifty or more employees, millions of employees across the United States do not qualify to enjoy these federal legal protections simply because they are employed by smaller employers.

HOW DO STATE LAWS PROTECT EMPLOYEES IN CALIFORNIA?

In California, state law tries to bridge the gap and provide more legal protection to all pregnant workers. Starting in 2018, under the California Paid Family Care Leave Act, employees who take family leave can receive up to 70 percent of their wages for up to six weeks to care for a new child, a newly-adopted child, a foster child, or an ailing family member.

Over 1.5 million employees in California have taken paid leave to care for a child or a sick relative since 2004.

And if a pregnancy or a pregnancy-related medical complication means that an employee cannot work for longer than six weeks, the employee may be eligible for another four months of leave through this state’s Pregnancy Disability Leave Act, which provides family leave to pregnant employees in California who are covered by a health insurance plan, without regard to the size of the company or the employee’s length of employment.

In California, you cannot be fired for taking family leave if you are entitled to it.

California employers may not harass, discriminate, demote, retaliate, or take action of any kind against employees who request and take FMLA leave, Paid Family Care leave, and pregnancy, disability, or military caregiver leaves.

If you are planning any type of leave, give your employer appropriate notice, and complete any paperwork that is required to have the leave approved.

WHAT CAN VICTIMS OF PREGNANCY DISCRIMINATION DO?

If you are or were employed in California, and if you were denied leave or discriminated against in any other way because you are or were pregnant, discuss your rights and options with a skilled San Francisco employment rights attorney.

If you are or have been a target of pregnancy discrimination, and if you are considering legal action against your employer, these recommendations may help:

Keep a record of everything that you believe is evidence of discrimination.

Put it in writing and make several copies. Always submit leave requests in writing and try to get written responses.

If you file a discrimination lawsuit, your notes, documents, and copies could become evidence, so store them securely.

Don’t try to act as an attorney, and don’t argue with your employer about the law.

Your questions regarding pregnancy discrimination and family leave can be answered by a California employment rights attorney.

If you take legal action, or if you need to learn more before making that decision, an employment rights lawyer can help.

California’s employment rights and anti-discrimination laws are perhaps the most thoroughgoing in the nation.

In this state, pregnancy is one of a number of “legally protected characteristics” that also include marital status, sex, age, sexual orientation, religion, race, ancestry, national origin, physical disability, and mental disability.

If an employer has violated any of your employment rights in California, you may be entitled to:

– compensatory damages
– reinstatement and back pay
– retroactive benefits and seniority
– attorney fees and court costs

WHY WILL PREGNANCY DISCRIMINATION VICTIMS NEED AN ATTORNEY’S HELP?

If you are or have been a victim of employment discrimination based on pregnancy, a California employment rights lawyer can walk you through the legal steps you’ll need to take.

For instance, before you may bring an employment discrimination claim in this state, your right to sue must first be approved by the California Department of Fair Employment and Housing (DFEH) and/or by the federal Equal Employment Opportunity Commission (EEOC).

California employment discrimination cases are legally complicated, but they provide workers with considerable legal protection.

A pregnancy discrimination case must be managed by an employment attorney from the very beginning.

If you are a victim of employment discrimination, you have the right to seek justice.

Get the experienced legal help you need, and be assured that in California, the law is on your side.

California’s New Ban The Box Regulation

Posted on: July 20, 2017 by in Employment Law
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Let’s say that you are applying for a great job. You are more than qualified, the pay is above what you expected, and it’s close to your home.

However, as you fill out the employment application, it finally pops up – “the box” – and your confidence sinks. It’s the box that asks if you’ve been convicted of a crime.

If you have, and if you are honest and you check the box, you will probably remain unemployed.

Employers who print “the box” on their job applications often miss the chance to hire diligent, exceptionally qualified workers who may have had a bit of legal trouble in the past.

Employers in San Francisco have not used “the box” since the city’s Board of Supervisors approved the “Fair Chance Ordinance” and banned “the box” in 2014, but outside of San Francisco, most private employers in California were still allowed to print the box on employment applications until July 1st of this year, when California’s new “Ban the Box” rule for most employers finally went into effect statewide.

WHAT DOES THE NEW RULE REQUIRE?

California already banned prospective employers from asking about previous detentions or arrests that did not result in criminal convictions, and employers have also been barred from asking about sealed or expunged criminal records.

The new rule applies to all employers in California with five or more California employees, and it bans employers from asking about criminal convictions if either of these situations exists:

The questions have an “adverse impact” on individuals protected by California anti-discrimination laws because they belong to a class that is legally protected on the basis of gender, race, religion, nationality, ethnicity, orientation, pregnancy, disability, or marital status.

The employer cannot prove that the questions are employment-related and pertinent to the needs of the business; or, if the employer can prove that the questions are employment-related, but the prospective employee or job applicant can offer a less discriminatory way to achieve the goals of the business just as effectively.

While the potential victims of hiring discrimination have the legal burden of proving that an employer’s questions create an adverse impact, an adverse impact can often be easily proven by statistics and other evidence that proves such questions lead to considerable disparities among persons in protected classes.

In a legal dispute, an employer may attempt to counter the presumption of adverse impact by showing that a markedly different result can be expected because of the particularities of the job and the work in question.

WHERE CAN A VICTIM OF HIRING DISCRIMINATION TURN?

If you believe that a prospective California employer has asked you questions that California employers may not legally ask – whether or not you completed a job application with or without “the box” – and those questions created an “adverse impact” on you as a job-seeker, discuss your circumstances as quickly as possible with an experienced San Francisco employment rights attorney.

Employees and job-seekers in the state of California enjoy substantial legal rights.

If those rights are violated by a California employer, you may be able to negotiate a settlement or agreement out of court with an attorney’s help, or you may be entitled to pursue a lawsuit, hold the employer accountable for illegal discrimination, and even – in some cases – receive monetary compensation.

A skilled San Francisco employment rights attorney can explain your legal rights and options and how the law applies in your particular case.

In a legal setting, once a job-seeker shows that questions from an employer about criminal convictions will create an adverse impact, the employer must prove that having accurate information about the criminal convictions of employees is a necessity for the business.

Thus, the employer must prove that the policy or practice accounts for the nature and gravity of a criminal conviction and for the time that has passed since the sentence was completed as well as the nature of the job itself.

WHEN DO EMPLOYERS NEED TO KNOW ABOUT CRIMINAL CONVICTIONS?

To be considered legal, an employer’s “need to know” or ask about criminal convictions must be clear and undeniable. It is exceedingly difficult for most California employers to prevail in these cases, but there are some exceptions.

Obviously, a day care center cannot hire someone with a recent child abuse conviction, and a taxicab company cannot hire a driver with recent convictions for driving under the influence of alcohol or drugs.

Employers who hire for child care and assisted living facilities, transportation jobs, financial, accounting, and banking services, and security-related positions may have a legally defensible basis to reject employment applications from persons with related criminal convictions.

But in cases where the relationship of the criminal conviction to the job is less than explicit, employers will have difficulty proving their case – especially if the prospective employee belongs to a legally protected class.

For most employment in California, convictions for crimes like DUI, simple assault, and drug crimes are not “automatic” disqualifiers.

With the implementation of “ban the box” statewide, some California employers should probably reconsider whether a hiring policy that “automatically” disqualifies some job-seekers is still in their best interests.

Under California law, it may be a better approach for some employers to consider every job applicant individually and without any automatic disqualification policy for hiring.

Employers may also need to review and revise their written job classifications and descriptions to ensure that the current language fully complies with the new rules.

If a check box on the employment application asks about criminal convictions, most employers should remove it, and if the employer believes that information about criminal convictions is a necessity, that information should be sought at a later stage in the hiring process.

Hiring discrimination cannot be tolerated, and the law in this state forbids it. Banning “the box” is just one more step toward ending hiring discrimination – in all of its forms – in our state.

If you experience any hiring or employment discrimination in California based on your gender, religion, race, ethnic background, disability, pregnancy, or sexual orientation, speak as soon as you can with an employment attorney to discuss your legal rights and options.

If you are a victim of employment discrimination in California, the law is on your side, and a top San Francisco employment rights attorney can fight for justice on your behalf.

Was Your Firing Illegal?

Posted on: June 23, 2017 by in Employment Law
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If you have been terminated from your employment in the state of California, you may have been fired illegally. That is, you may be a victim of what the law calls “wrongful termination.” How can you know?

First of all, it’s important to understand that most employment in California – unless you are employed under the terms of an employment contract – is what the law calls “at will” employment.

That means that you stay at or resign from a job at your own will, and it also means that you are hired and fired at the employer’s will – with one important exception.

You can be terminated by your employer for any reason that is legal or even for no reason at all, but you cannot be fired in a way that violates the terms of an employment contract, and you cannot be fired for a reason that is illegal.

If you’re fired while you’re working under a contract that guarantees job security, or if your employer made other written guarantees in a document that you can produce, your termination may be a wrongful termination, and you’ll need to seek the legal advice of a San Francisco wrongful termination attorney.

An “implied” contract is trickier. If your employer made verbal promises regarding the length and security of your employment, that’s almost impossible to prove.

But there is a type of “implied” contract if an employee manual specifies a series of progressive disciplinary measures that the employer imposes before terminating an employee.

When any of those steps or measures are skipped or ignored, the fired employee may have grounds for a wrongful termination claim.

HOW CAN A WRONGFUL TERMINATION ATTORNEY HELP?

A top San Francisco wrongful termination attorney can review the particulars of your case, determine where you stand legally, and recommend the best course of action.

While an implied contract is usually quite difficult to prove, if you choose to bring a wrongful termination claim on the basis of an implied contract, a California court will consider factors that may include:

  • what promises may have been made when you were hired
  • any subsequent or continuing assurances of employment
  • the length of your employment
  • your promotions and performance reviews
  • whether the employer fired you while ignoring a typical or stated company policy – such as giving verbal warnings

An employment contact – in writing or implied – may give someone who has been fired legal grounds for a wrongful termination claim, but if you’re like millions of working people in California, your job isn’t governed by a contract, and you are entirely an at-will employee.

You have a number of employment rights under California law – and perhaps more legal protection than employees in any other state – and as mentioned previously, although you may be fired for any legal reason or for no reason at all, you may not be fired for an illegal reason.

WHAT REASONS FOR FIRING SOMEONE ARE CONSIDERED ILLEGAL?

What constitutes an illegal reason for firing an at-will employee in the state of California? You may not be terminated for any reason related to your race, gender, orientation, family or marital status, nationality, ethnicity, religion, disability, or pregnancy.

You cannot be fired because you ask for a disability accommodation, legal overtime pay, or legally-protected rest breaks or lunch breaks.

Employers may not retaliate against employees for whistle-blowing, that is, for reporting or testifying about an employer’s specific crime or ongoing illegal practice.

You also may not be fired as an at-will employee in California for any of these reasons:

  • taking a legally-protected family, pregnancy, or medical leave
  • applying for worker’s compensation or filing for bankruptcy
  • taking time to vote or serving on a jury
  • refusing to enter a hazardous jobsite
  • refusing to sign a non-compete agreement

Discrimination in employment matters is illegal. If you know or believe that you have been terminated from your employment in California because of your race, national origin, ethnicity, gender, orientation, religion, age, disability, or pregnancy, you are a victim of wrongful termination.

You should discuss the details of your termination with an experienced San Francisco employment attorney.

As a victim of wrongful termination, you may be entitled to reinstatement, compensation for your lost wages and your emotional suffering, and possibly more. You will certainly be entitled to justice.

WHAT IF AN EMPLOYER TRICKS OR DECEIVES SOMEONE?

In some rare cases, an employer’s behavior rises to the level of criminal fraud. Fraud is common in some industries in the recruiting process – with promises of big money that never materializes – and in the termination process, where employees are sometimes tricked, cajoled, or bullied into resigning.

However, in order to prove that a termination was wrongful because it was fraudulent, you would have to prove that the employer knowingly made a false representation that was intended to deceive, that you believed the false representation, and that you were fired because of your continuing belief in that false representation.

The hard part is proving that an employer committed fraud intentionally. An employer’s claim that “it was all a big misunderstanding” can sometimes be persuasive.

To prove that an employer committed fraud that led to your wrongful termination, you’ll need a great deal of documentation regarding the precise content of any false representations and how, when, and to whom those false representations have been made.

If you have been fired illegally, and you can’t rapidly find other employment, you could soon be unable to meet your obligations and responsibilities due to someone else’s illegal behavior.

That’s why it is imperative to speak with a qualified San Francisco wrongful termination attorney if you believe that you have been fired for a reason that is against the law.

If it is genuinely a wrongful termination, it will not be tolerated in California, and the law will be on your side.

Employment attorneys in California have a number of strategies for challenging wrongful terminations. Typically, the first step is attempting to negotiate an out-of-court settlement with the employer. An out-of-court settlement can save everyone who’s involved a great deal of time and money.

When the evidence of a wrongful termination is strong, an out-of-court negotiation is frequently successful. However, if the employer will not settle with you outside of the courtroom, your employment attorney may recommend taking the case to trial.

How To Handle Slander In The Workplace

Posted on: May 20, 2017 by in Employment Law
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Slander is oral defamation. It happens when someone tells one or more persons a falsehood about another person and the falsehood harms the reputation of the person being defamed.

In the state of California, slander is a civil wrong. A person or even a company can be sued for slander.

Some allegations, such as a false accusation of committing a crime, having a dangerous communicable disease, or being unable to perform one’s work are considered slander “per se,” because the harm that can be done is obvious.

In such cases, a defendant may be ordered by a court to pay punitive damages as well as documentable economic damages to the plaintiff.

Under California law, there are two types of defamation – libel and slander. Slander must be spoken words, but libel is defamation in any form or medium.

Defamatory statements made on television or radio are considered libel, however, rather than slander, on the presumption that television and radio reach an audience as large if not larger than printed publications reach.

In California, if you are a victim of either slander or libel in the workplace, and if that slander or libel has caused you injury or harm, you should discuss your legal rights and potential options with a skilled San Francisco employment rights attorney.

Slander in the workplace can be particularly humiliating and damaging, but in most cases, the law in California can offer recourse to the victims of workplace slander.

If you are slandered at your workplace and you choose to bring legal action against the person who slandered you, you first must prove that a false statement about you was made to a third party.

This can be difficult to prove unless there are reliable witnesses or the statement was recorded in some way.

WHAT IS THE KEY TO WINNING A SLANDER LAWSUIT?

Secondly, even if you prove that a false statement was made about you, you will also have to prove that the false statement caused demonstrable harm or injury to you and/or to your reputation.

Finally – and this is the key to understanding slander – to win a slander lawsuit, the alleged victim – the plaintiff – must be able to prove that the person who made the false statement – the defendant – knew or should have known that the statement was false.

Expressing an honest personal opinion, even if it’s an unpleasant opinion, does not legally constitute slander.

The kinds of statements that may constitute employment-related slander can include but are not necessarily limited to accusing someone falsely and maliciously of dishonesty or corruption, incompetence, or criminal activity, or making other false, malicious, or damaging statements about someone’s character or behavior.

A statement is not slanderous just because it is critical or offensive. The law in California spells out quite clearly what constitutes slander.

Nevertheless, every situation is different.

For example, if “rumors” of a sexual nature “are being spread” about someone at his or her workplace, it may be difficult to prove that the statements are being made, and it may additionally be difficult to prove that harm or injury is being suffered.

But if an employer says that an employee was terminated for drinking on the job, for example, when the employee was fired for some other reason, malice and injury might be easier to prove.

HOW CAN YOU PROVE THAT AN EMPLOYER WAS MALICIOUS?

How can a victim of slander demonstrate that an employer’s or ex-employer’s statements were malicious?

Usually, a California employment rights attorney will try to prove that statements were malicious by either outlining a history of conflict between the slandered employee and the employer or by pointing to an employer’s clear and unprofessional failure to investigate the veracity of the charges that led to the false statements.

In California, former employers who provide false statements to prospective employers may be sued for slander if those false statements prevented an ex-employee from being hired.

Anyone who has questions or concerns regarding slander or libel in a specific employment-related situation should consult a San Francisco employment rights attorney.

A good workplace harassment lawyer can explain your rights and options, recommend a course of action, and if necessary, file a slander or libel lawsuit and fight for justice on your behalf.

Slander can be embarrassing, humiliating, and even cause depression – or anger. But taking legal action is the only appropriate response to being slandered.

On the job, a false statement by someone’s employer can genuinely damage that person’s reputation and can also actually damage that person’s future employment opportunities.

A slander lawsuit can stop an employer from continuing to spread the lies, and an employee or ex-employee whose slander lawsuit prevails may additionally be able to recover the following damages:

  • General damages are damages for loss of reputation, shame, and humiliation.
  • Special damages are the economic damages a plaintiff has suffered as a result of the libel.
  • Exemplary damages, also called punitive damages, are damages which may be awarded by a court or jury in addition to general and special damages to punish an employer’s egregious, unacceptable conduct.

WHEN IS A SLANDER LAWSUIT AN EX-EMPLOYEES ONLY RECOURSE?

While employers in this state may terminate employees “at will” (unless an employment contract is in place that states otherwise), an employer in California cannot terminate anyone for a reason based on discrimination or on retaliation.

When an at-will employee is fired for a non-discriminatory or non-retaliatory reason based on a false accusation (of stealing from the employer or drinking on the job, for example), a defamation claim – that is, a slander or libel lawsuit – may be the only recourse that the ex-employee has for seeking justice.

A one-year statute of limitations applies to defamation claims in this state, so it is imperative to consult an employment rights lawyer at once.

Defamation cases – slander and libel cases – can be quite complicated, and a substantial investigation is often necessary to build a slander case.

If you have been a target of slander by an employer or an ex-employer, an experienced San Francisco workplace harassment attorney can provide the sound legal advice you need, conduct a comprehensive investigation, compile evidence and testimony on your behalf, protect your legal rights, and fight aggressively for the justice you need – as well as the compensation you deserve.

State Of California Seeks To Increase Harassment Training In The Janitorial Industry

Posted on: February 22, 2017 by in Employment Law
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Late last year, lawmakers in Sacramento approved – and Governor Jerry Brown signed – Assembly Bill 1978, making California the first state to adopt legislation aimed at protecting those employed in the janitorial industry against sexual harassment and assaults.

Training janitors how to protect themselves against such harassment and assaults at work is a central element of the new statute. It is estimated that more than 200,000 janitors are employed in the state of California.

Additionally each year under the new law, janitorial services in California now must register with the state’s Division of Labor Standards Enforcement and pay a registration fee of $500.

Janitorial service employers who fail to register can be fined up to $10,000 under the statute.

Assembly Bill 1978 also imposes fines on janitorial service contractors who don’t follow legal business practices, and it holds the contractors – as well as the owners of buildings where janitorial employees work – more accountable under the law.

The new legislation was introduced by State Assemblywoman Lorena Gonzalez of San Diego.

Assembly Bill 1978 was backed by a number of groups including the Service Employees International Union-United Service Workers West as well as the Maintenance Cooperation Trust Fund, a California “watchdog” organization committed to ending illegal practices in the janitorial industry.

The proposal was also supported by the California Chamber of Commerce, the California Automakers’ Wholesalers Association (CAWA), the Commercial Real Estate Development Association, the California Business Properties Association, the International Council of Shopping Centers, and the California affiliate of the National Federation of Independent Business.

WHY DOES ASSEMBLY BILL 1978 FOCUS SPECIFICALLY ON JANITORS?

Why should a law focus specifically on janitors? Thousands of female janitors are employed in California. Many are immigrants, far from home, dealing with a language barrier, and they may be confused regarding whether or not a customer’s or supervisor’s behavior constitutes sexual harassment.

Alejandra Valles, the secretary-treasurer of the Service Employees International Union-United Service Workers West, told Bloomberg BNA, “Offering qualitative training, versus having an HR person teach this, is precisely what the bill was crafted to do. It will empower the women, and most important, they will know where they can go for help.”

Sexual harassment and assault in the janitorial services industry came to public attention in 2015 when PBS aired the Frontline documentary titled “Rape on the Night Shift,” which focused on the dangers facing female janitorial employees.

Assemblywoman Gonzalez told PBS that she was moved to tears by the documentary. “This is assault and rape,” she said. “Obviously, it’s something we would never allow to happen, and we need to take the steps necessary to prevent it.”

San Francisco workplace harassment attorney Kenneth Frucht explains: “Two lawsuits filed by women who worked as janitors for a company that provided services to Genentech alleged that the women were assaulted and raped while working graveyard shifts.

The complaints allege sexual harassment by male superiors, and the failure to protect the women over a period spanning five years.

Janitorial workers in California are particularly vulnerable because many of them are immigrants, have difficulty with communicating in English, don’t know their rights and are fearful of losing their jobs if they confront their employers or harassers.”

Attorney Frucht further explains: The sensitive position of janitorial workers was implicitly acknowledged when Governor Jerry Brown signed Senate Bill 178 in September 2016.

The new law covers approximately 220,000 California janitorial employees, and authorizes the California Labor Commissioner to enact regulations to enforce the law.

Beginning July 1, 2018, janitorial employers will be required to register with the Labor Commissioner in order to conduct business in California, and by that date they must also provide employees with Department of Fair Employment and Housing pamphlets on sexual harassment.”

Attorney Frucht adds, “The new law also establishes fines for specific violations of its provisions. By enacting this law, the legislature has begun a much-needed process of educating both employees and employers in this employment sector on their rights and responsibilities related to prevention and remediation of harassment and discrimination in the workplace. Though this won’t eliminate these problems, it is one more tool that employees have to fight for a safe and harassment free workplace.”

Assembly Bill 1978 does not actually go into effect until mid-2018.

It requires employers to provide details regarding their janitorial services, disclose any legal actions taken against them, and provide a federal employer ID number or a state employer ID number.

Speaking for the Maintenance Cooperation Trust Fund, Lilia Garcia-Brower told Bloomberg BNA, “To the responsible business owner this will seem like common sense. But with the underground economy and fly-by-night contractors in California, that’s a big step forward.”

HOW HAS THE JANITORIAL INDUSTRY OPERATED IN THE PAST?

Since the 1970s, questionable business practices defined the janitorial service industry.

In a study of the janitorial business published in March 2016, the University of California Berkeley’s Center for Labor Research and Education reported, “A subcontracting system that awards contracts to the lowest bidder, the practice of operating ‘underground’ or off the books, and minimal profit margins all serve to keep wages low and hazards unchecked …. This industry dysfunction can also manifest itself in the form of sexual harassment and assault of janitors and security officers, often by their own supervisors.”

For several reasons, the risk of sexual harassment is high for janitors. Several layers of contractors and subcontractors tend to create less employer accountability.

Employees often work at night, in isolation, and many are women who do not speak English and may not have documentation.

This makes the reporting of harassment incidents less likely, because these women may fear retaliation or may lack a complete understanding of their legal rights as employees in California.

Assembly Bill 1978 governs California janitorial companies with at least one employee. It also covers janitors who work as independent contractors or as franchisees.

One provision of the law does not kick in until the year 2020.

That’s when janitorial service employers are required to start providing, at least once every two years, violence prevention and sexual harassment training.

California law already requires most employers to offer sexual harassment training to supervisors and managers but not to employees.

Assembly Bill 1978 also forbids any California business or entity from entering into a contract with an unregistered janitorial company.

Violators will face civil fines that could be as high as $25,000. Business leaders say that in spite of its good intentions, Assembly Bill 1978 will be a costly, time-consuming burden on employers.

“Every imposition on a business creates new costs for them, and new potential liability,” according to Ken DeVore, the legislative director for the National Federation of Independent Business California.

But DeVore also added, “We don’t believe there should be sexual harassment or assault in any workplace.”

WHAT ARE THE LEGAL RIGHTS OF WORKERS IN CALIFORNIA?

Employees are legally protected and have a number of rights in the state of California. This state’s wage-and-hour regulations, along with its other laws protecting employees, give workers in our state more legal protections than they receive in most other states.

A San Francisco workplace harassment attorney can provide advice and legal help if a California employer violates your right to:

  • be paid for all hours worked
  • be paid at least the state minimum wage
  • be paid overtime and double time when you qualify
  • rest and lunch breaks
  • be reimbursed for work materials
  • be paid by check with an itemized deduction statement
  • immediate medical attention, paid for by the employer, if you are injured on the job
  • health and safety equipment and training
  • a workplace free of harassment and intimidation

If you are dealing with any type of harassment and intimidation at a California workplace, it needs to stop now. Californians do not tolerate employers who operate illegally, and our laws in this state express and reflect that commitment.

Assembly Bill 1978 is one more step in California’s efforts to ensure fairness and justice for this state’s working people and their employers.

San Francisco’s New Parental Leave Law Goes Into Effect

Posted on: January 26, 2017 by in Employment Law
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The most comprehensive parental leave law in the United States is already going into effect here in California. San Francisco’s new Paid Parental Leave for Bonding with New Child Ordinance (also called the Paid Parental Leave Ordinance or “PPLO”) took effect on January 1st for employers in San Francisco with 50 or more full-time and/or part-time employees. The pioneering employment ordinance was approved unanimously last April by the San Francisco Board of Supervisors. Parents are not required to reside in San Francisco in order to qualify – PPLO benefits are determined by where you are employed rather than where you reside.

The PPLO was created for both fathers and mothers who are welcoming a new child through birth, adoption, or as foster parents. Under the PPLO, most parents who are employed in San Francisco will qualify for six weeks of fully-paid leave. California is already one of only several states that offer paid parental leave. At the statewide level, California offers workers six weeks of parental leave at 55 percent of their regular pay. San Francisco’s new ordinance makes employers responsible for the remaining 45 percent as supplemental compensation to employees who use California paid family leave (PFL) benefits for new child bonding.

San Francisco employers with 35 or more employees must comply with the PPLO beginning on July 1, and employers with 20 or more employees are required to comply by January 1, 2018. The Paid Parental Leave Ordinance applies to both for-profit businesses and non-profits. Based on the number of parental leave claims made in recent years, about five thousand moms and dads are expected to receive PPLO benefits each year once the law takes full effect in 2018. However, former San Francisco Supervisor Scott Wiener, who is the original author of the ordinance, thinks that expectation is on the low side.

The number of parents taking paid parental leave has been incrementally rising year-by-year, and the PPLO may motivate even more parents to take paid parental leave. “Too many middle- and lower-income parents forgo parental leave simply because they can’t afford it,” Wiener explained. “This law will eliminate the terrible choice many families face between bonding with a new child and paying the bills.”

To qualify for the Paid Parental Leave Ordinance benefits, a parent must work for a San Francisco employer for at least 180 days as a full-time, part-time, or temporary employee. Independent contractors are not eligible for PPLO benefits. The parent must work for at least eight hours a week in San Francisco, and at least 40 percent of the total work hours must be in San Francisco. Parents may choose to take the six weeks all at once or over a period of twelve months.

Employees are also required to reimburse an employer for the full amount of the employer’s contribution – the previously-mentioned 45 percent – if the employee voluntarily terminates employment within 90 days of the conclusion of the employee’s paid leave period. And although most parents will be “fully” paid for parental leave under the PPLO, there is a cap on PPLO benefits that will impact some employees.

The weekly maximum that a parent can obtain under the Paid Parental Leave Ordinance is $2,133. That means parents who earn $110,916 or less annually will receive fully paid leave, but those who earn more will not be able to exceed the $2,133 weekly cap. PPLO benefits may differ slightly from state benefits because the City of San Francisco calculates average wages based on an employee’s pay for the twelve weeks immediately prior to taking leave, while the state’s calculation is based on an employee’s pay over the previous five to eighteen months.

Employers may not terminate or threaten to terminate, demote, suspend, discriminate against, or take any other retaliatory action against an employee for exercising his or her rights under the Paid Parental Leave Ordinance. Employers may not interfere with, restrain, or deny the exercise or attempted exercise of any employee’s rights under the ordinance. If you believe that an employer is violating any of your employment rights, an experienced San Francisco employment rights attorney can explain those rights and your legal options.

San Francisco employers that are already providing their employees with at least six successive weeks of fully paid parental leave for new child bonding within a twelve-month period do not need to take additional action to be in compliance with the Paid Parental Leave Ordinance. The ordinance does not prevent employers from practicing or implementing a parental leave policy that is more generous than the PPLO requires.

With the exception of a few small business owners, the PPLO has been generally supported throughout the city. However, the San Francisco Chamber of Commerce said there is a “strong belief among many business owners that once again, to the financial detriment of small businesses, a mandate is being adopted in San Francisco that would be better dealt with at the state or federal level.” The Chamber of Commerce declared itself “neutral” on the PPLO in a letter to the San Francisco Board of Supervisors.

Former San Francisco Supervisor Scott Wiener told the New York Times that San Francisco’s Board of Supervisors took action on parental leave because there was little prospect for progress at the federal level. “Whether it’s paid parental leave, infrastructure investment, minimum wage, paid sick leave or addressing carbon emissions, we know the states have to act,” Wiener explained to the Times.

San Francisco’s Paid Parental Leave Ordinance is now one of several family-related employment rights that protect California workers. The federal Pregnancy Discrimination Act protects women from termination for becoming pregnant, and the federal Family and Medical Leave Act provides up to three months of unpaid leave – but applies exclusively to employers with 50 or more employees and to workers with at least one year on the job. Additionally, California’s Pregnancy Disability Leave Act mandates family leave for pregnant employees who are covered by health insurance, without regard to an employer’s size or an employee’s length of employment.

If you’re an employee or an ex-employee dealing with any type of wage, hour, leave, benefit, or overtime dispute in California, or if you are a victim of employer retaliation, you can fight back with the help of an experienced San Francisco employment rights attorney. Enforcing your rights as an employee is a high priority for California’s justice system, and in 2017, no one should have to suffer employment discrimination or any other violation of employment rights.

What Are San Francisco’s Laws On Employee Drug Testing?

Posted on: December 22, 2016 by in Employment Law
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According to a report issued in 2007 by the U.S. Department of Health and Human Services – and according to scores of other studies and surveys as well – employees who use illicit drugs recreationally are more likely to miss work than employees who do not. This reality can be difficult for employers and particularly for small businesses that count on every employee to contribute and produce. Thus, as a part of the hiring process, many employers in the San Francisco Bay Area now require drug testing.

Drug testing by employers has been and remains a controversial legal topic. On the one hand, employees have a right to privacy, a right to be free of harsh and outdated attitudes, and a right to be free from employer discrimination. On the other hand, employers have a legal duty to keep workplaces safe and productive and to protect other employees as well as the public from injury. A dispute between an employee’s rights and an employer’s responsibilities is the kind of dispute that California’s employment laws are designed to resolve.

Federal law imposes very few drug-testing rules and regulations on private employers. The federal government requires drug testing by private employers only in the transportation sector and for NASA and Defense Department contractors. Outside of those exceptions, federal statutes do not require or prohibit drug testing by employers in the private sector, so the practice of employer drug testing is generally regulated instead by state laws and local ordinances.

WHAT ARE THE DRUG TESTING RULES IN CALIFORNIA?

Has your employer in California – or your prospective employer – asked or required you to submit to a drug test? California’s state constitution includes an explicit right to privacy that is stronger than the privacy rights guaranteed implicitly by the U.S. Constitution. The courts in this state have determined that drug testing may in fact represent an intrusion on a Californian’s right to privacy, but that does not necessarily mean that employers can’t require drug tests. Disputes over employee drug testing are resolved in California courtrooms on a case-by-case basis. The courts try to balance the genuine needs of employers with the legitimate rights of employees.

The courts in California have determined that in most cases, employers in this state may compel a job applicant to pass a drug test as an employment condition. Provided that the employer tests all candidates for a position, California courts generally allow pre-employment drug testing. In November 2016, California voters passed Proposition 64, which will allow adults in California to use marijuana for recreational purposes, but that won’t change the way drug testing is conducted. California’s Supreme Court has already determined that an employer may turn down a job candidate who tests positive for cannabis, even if it is legally prescribed for a medical reason.

Once a job applicant becomes an employee, he or she has more of a stake in the drug testing process, so the courts in California try to weigh the employer’s motive for drug testing against the employee’s right to privacy under the state constitution. An employer who suspects an employee of drug use – provided the suspicion is reasonable and based on facts and evidence – can in most cases require a drug test. However, except for safety-sensitive jobs, random drug testing usually is not allowed.

WHAT RIGHTS DO EMPLOYEES HAVE REGARDING DRUG TESTING?

Although California law allows employers to drug test, job applicants and employees may have legal claims based on how the tests were conducted, who was tested, or how the results of the drug tests were used. As mentioned previously, disputes over employee drug testing are resolved by the California courts on a case-by-case basis, so California law does not spell out any precise testing protocols or procedures.

Nevertheless, drug testing must be conducted by employers in a legal manner that respects the privacy rights of job applicants and employees. California employers can lower the “expectation of privacy” by spelling out – in the employee handbook, for example – the conditions when drug testing will be required. Still, an employer in California may be in violation of the law if any of these conditions apply:

1. Defamation: Test results must remain confidential. If the employer publicizes or otherwise reveals the results of a drug test beyond those with a need to know – and especially if the test result is positive – the employer may be liable for defamation and may in some instances be sued in a civil court action.

2. Invasion of privacy: The motive for a drug test may be legitimate, but the test must also be conducted legitimately. Requiring employees to provide a urine sample or to disrobe in front of others could be considered a violation of privacy.

3. Disability discrimination: An employee or job applicant who takes a prescribed medication for a disability is protected under the Americans with Disabilities Act. If an applicant is rejected because of a positive test, and the medication was prescribed legally for a disability, the employer could be liable for discrimination – unless the prescription is for medical cannabis.

4. Race, gender, and other discrimination: Any employer who singles out certain groups of employees for drug testing on the basis of age, race, religion, gender, ethnicity, or orientation – or any other legally protected group trait – could very quickly face a discrimination lawsuit.

WHAT DO CALIFORNIA EMPLOYERS AND EMPLOYEES NEED TO KNOW?

If you own a business in California, knowing when and how it is and is not legal to drug test your employees is imperative. If you are an employee in this state, do not allow fear or embarrassment to hold you back if you believe that an employer has wrongly tested you for drugs or has violated your employment rights in any other way. No worker in California should ever be a victim of discrimination.

If you believe that a California employer has illegally discriminated against you, or if you’re not sure, discuss your circumstances and concerns with an experienced San Francisco employment rights attorney. You’ll receive the candid legal advice you need, your questions and concerns will be addressed, and if you have sufficient legal grounds for a lawsuit against your employer, a good employment rights attorney can fight diligently on your behalf for the justice you deserve.

Are UBER Drivers Employees or Independent Contractors?

Posted on: July 14, 2016 by in Employment Law
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If you are a working person in the state of California, you probably have a great many responsibilities, so it’s important to take the time to understand your rights as well.

Federal and state laws protect legal employees in California at every stage of employment from hiring through termination.

Thus, people who work in this state need to know: Does your employer classify you as a “legal employee” or as an independent contractor?

You need to know because while legal employees in the state of California have extensive legal protection, and a number of legal rights, independent contractors in this state have little protection and few legal rights.

If you are a legal employee in California but your employer treats you as an independent contractor, you may need to speak with a San Francisco employment rights attorney because you are entitled to rights and benefits that you may not be receiving, which may include:

  • the legal protection that federal and state wage and hour laws provide
  • the legal protection that antidiscrimination statutes provide
  • payroll withholdings including tax withholdings
  • unemployment benefits and workers’ compensation benefits

California offers more legal protection to employees than perhaps any other state, and it defines more working people as employees than some states.

For example, California-based drivers for the ride service Uber may legally be employees rather than independent contractors, according to the California Labor Commissioner (CLC).

Since its beginning, Uber has classified its drivers as independent contractors, a practice that’s been upheld in Georgia, Texas, and also in New York.

The CLC, however, found that at least one Uber driver met California’s legal definition of an “employee.”

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SO, ARE UBER DRIVERS EMPLOYEES OR CONTRACTORS?

In 2014, a San Francisco Uber driver named Barbara Ann Berwick submitted a wage complaint to the California Labor Commissioner. Ms. Berwick requested reimbursement for outstanding business expenses – for gas receipts and tolls.

Uber’s position is that Ms. Berwick was not an employee but was instead a self-employed independent contractor, which would mean Uber had no legal obligation to reimburse those expenses.

The California Labor Commissioner ruled in favor of Ms. Berwick in 2015 and awarded her more than $4,000 in business expenses and interest.

The CLC applied the “economic realities” test used by California’s Supreme Court in a 1989 case – S.G. Borello & Sons, Inc. v. Department of Industrial Relations.

Based on the ruling in that case, the CLC spelled out a number of questions that must be answered to decide if someone is an independent contractor or a legal employee in California.

Those questions include:

  • Is the worker in an occupation or business distinct from that of the employer?
  • Is the work part of the employer’s regular business?
  • Who owns or provides the materials, tools, and equipment?
  • Has the worker invested in materials or equipment for the work?
  • Is a special skill required?
  • Is supervision by the employer required?
  • For how long will services be performed?
  • Is the worker paid by the hour or by the job?
  • What is the current understanding of the relationships between the two parties?

Based on the answers to these questions, the CLC ruled that Ms. Berwick was already a de facto employee of Uber.

Drivers are not only essential to Uber’s business, the CLC determined, but Uber also provides its drivers with iPhones, monitors their ratings by consumers, and deactivates their accounts if they are inactive for too long or if their approval ratings drop too far.

No special skill is required to drive, and Uber alone has the authority to decide what amount customers pay.

The CLC was not convinced by Uber’s claims that drivers are independent contractors because they set their own hours, work without supervision, don’t have employee retirement plans, and may decline to accept customers.

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The “economic realities” test is individualized, so the CLC’s determination for Ms. Berwick does not automatically make all Uber drivers in California legal employees of Uber.

However, Uber could be looking at hundreds of claims by drivers and ex-drivers as a result of the decision, so it’s no surprise that the company has filed an appeal.

Depending on the outcome of the appeal, Uber may not be the only company impacted. Conceivably, the final outcome could affect all kinds of companies beyond the ridesharing industry.

WHAT RIGHTS DO CALIFORNIA EMPLOYEES ENJOY?

What rights do legal employees have in California that are not shared with independent contractors? They have the right to be free from employer and workplace discrimination and harassment.

Employers cannot deny anyone employment based on a factor like religion, gender, orientation, race, national origin, disability, or pregnancy.

In job interviews, employers may not ask about an applicant’s marital status, children, or orientation.

Employers may hire whom they please, but a rejection must be for a job-related reason unrelated to discrimination.

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Legal employees also have the right to the current minimum wage in California – $10.00 per hour – and several cities enforce a higher minimum wage.

Even employees who receive tips must receive the minimum wage.

Legal employees in California also have the right to a reasonably safe work environment, and employees injured on the job are entitled to workers’ compensation without having to prove an employer was negligent.

IN WHAT OTHER FIELDS ARE CONTRACTORS NOW LEGAL EMPLOYEES?

California continues to expand the categories of working people who are now protected as legal employees.

In 2015, for example, the CLC not only ruled in favor of Barbara Ann Berwick in her claim against Uber, but Governor Jerry Brown also signed legislation that makes cheerleaders for professional sports teams based in this state legal employees eligible for overtime, sick days, and other rights and benefits.

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The new law was drafted and passed in response to a lawsuit filed against the Oakland Raiders that ended with the team paying $1.25 million to ninety cheerleaders.

The women claimed that they had been wrongly treated by the Raiders as independent contractors who received only a small fee for a year’s worth of cheerleading with no minimum wage, overtime pay, or sick leave rights.

When California workers who are classified as independent contractors claim employee status, the courts in California strive to make certain that employers are in compliance with the law.

An experienced San Francisco employment rights attorney can help any worker in California who believes that he or she has been misclassified and any worker who simply needs more information about employment rights in our state.