California has some of the most comprehensive and protective laws for employees in the nation. California recognizes the necessity of workplace protections and ensuring that a person’s livelihood is not wrongfully infringed upon. Employees rely on their wages and salaries to provide for their families, pay rent or a mortgage, and help pay for their children’s educations. Employers are allowed to set rules, deadlines, and requirements for their employees to follow, however, they must still conduct their business and treat their employees within the letter of the law.

The most common and known employee right is the right to the minimum wage. With very limited exceptions, no employer may pay their employee below the California minimum wage (as of January 1, 2016, is $10.00 per hour). Furthermore, employers are generally required to provide their employees with rest and meal breaks, overtime pay for non-salaried workers, carry workers’ compensation insurance, and comply with illness and family leave laws.

In fact, your rights begin before you are even hired by a company. Anti-discrimination laws make it illegal for potential employers to ask certain questions during an interview, deny employment on the basis of sex or race, or failure to comply with certain reasonable investigation requirements for persons with disabilities.

Unfortunately, many workers in California experience violations of employee rights on a daily basis. Whether these violations are intentional or by mistake, it does not erase an employee’s ability to enforce the law and seek immediate correction of the violations. Too often, however, employees do not speak up or contact the proper administrative agencies to fix the problems going on in their workplace. Many times, employers are eager to correct mistaken violations of the law, but even if their reaction is hostile or unwilling, employees have many legal protections that prevent retaliation and enforce the law.

This article will guide you through an overview of employee rights and protections in California, covering pre-employment through post-termination.

What Can A Potential Employer Ask Me During An Interview?

Interviews are designed for a sole purpose: to determine whether a candidate is qualified for the position. Certain questions that go beyond determining what skills, education, and experience a candidate has—that are necessary for the posted position—may violate California law. For instance, employers are not allowed to ask questions relating to a candidate’s age, sexual orientation or identity, religious beliefs, or political preferences. Furthermore, questions about whether or not a candidate suffers from any physical or mental disabilities are prohibited. Questions related to whether or not a candidate can perform a job with or without reasonable accommodations, however, are permissible.

There are exceptions to these rules. In most cases, the above prohibitions apply, but there may be certain job types that render those types of questions acceptable. For example, age is generally an off-limits topic for interview questions. However, there may be certain federal or state laws that the employer must comply with before hiring an individual. The most classic example would be a job that requires the candidate to handle and serve alcohol and must be at least 21 years old.

Questions about criminal history are generally impermissible; employers may not ask about previous arrests that did not result in conviction, plea, verdict or any other finding of guilt by a court or jury. Any discoveries about these types of arrest may not be used by the employer in making his or her hiring decision. However, if a candidate has recently been arrested for a crime and is still facing criminal charges, employers may inquire as to the nature of the arrest. Questions about convictions are generally permissible. But note, questions about convictions where the records have been sealed (such as juvenile court records) or about marijuana convictions older than two (2) years are impermissible.

I Am Being Asked To Take A Drug Test, Is That Legal?

If a job applicant is asked to take a drug test as a condition of employment, such a request is permissible under law. However, drug testing of an employee requires compliance with strict aspects of the law. Generally speaking, the activities of an employee when that employee is “off the clock” is considered private information and is protected under the California Constitution’s right to privacy.[1] The California courts have routinely held that this right to privacy imposes strict requirements that an employer must overcome before requiring drug testing of its employees. Employers are held to specific standards that must be considered in determining the legitimacy of subjecting a private employee to a random drug test. These factors include: (1) the employer’s business and whether the job involves safety-sensitive or security-sensitive work; (2) the employee’s reasonable expectations of privacy; (3) whether the employee was given notice that she might be subjected to random testing; (4) whether the method of testing was a reasonable intrusion into employee privacy; and (5) whether the testing results were adequately kept confidential.

The employer’s reasoning must be based on some “legitimate” or “important interest” that requires testing an employee. The most common example would be a legitimate suspicion that the employee is under the influence of alcohol or drugs while at work. Other legitimate reasons may be where job performance requires use of heavy machinery or driving vehicles or handling hazardous materials.

Does My Employer Have To Terminate Me “For Cause?”

The short answer: no. California is an “at will” employment state, which means that employers do not need to provide justification for their decision to terminate employment. Employers may discipline or terminate their employees at will, regardless of whether or not that decision is objectively “fair.” This does not mean that employers can break anti-discrimination laws or retaliate against an employee for asserting their legal rights. For instance, an employer may fire an employee over 60 years old if there are disagreements regarding work performance or continual tardiness. But an employer may not terminate a 60 year old employee on the basis that the employee is older aged. That type of termination violates age-based discrimination laws at both the federal and state levels.

Additionally, employers may not immediately terminate employees shortly after the employee has accepted an offer to relocate and has quit their previous job. However, the employee may required to demonstrate that the new offer was actually real; that it was not some casual offer that was not firm when it was made.

Employment contracts may provide an exception to the “at will” standard of employment. Contracts that provide that an employee cannot being terminated “without cause” will circumvent the “at will” rule. Typically, union contracts (known as collective bargaining agreements) have such clauses. It is also possible, that in the absence of a contract, an implied contract exists, requiring the employer to make termination decisions based on cause. The court is the decider as to whether or not an implied contract exists. The court must weigh several factors in making its decision, such as, length of employment, promotions and awards, job performance evaluations, bonuses for work performance, and the language of the employee handbook.

What Are The Discrimination Laws In California?

Discrimination is a serious issue and is not tolerated under federal or California law. It is unlawful to be terminated on the basis of an employee’s race, sex, religion, disability, marital status, medical condition, sexual orientation or gender identity. Termination because an employer learns of an employee’s pregnancy is also prohibited and is a form of discrimination. Under California law, these discrimination laws apply to any employer of five or more employees.

The laws setting forth anti-discrimination practices are found under the California Fair Employment and Housing Act (FEHA), Title VII of the federal Civil Rights Act of 1964, the Age and Discrimination Act (ADEA), the Equal Pay Act, and the Americans with Disabilities Act (ADA). Claims of discrimination are handled by both the California Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC). Under law, discrimination claims must be filed first with either, or both, of these agencies before a lawsuit is initiated. The agency will conduct an investigation and then make its determinations as to what corrective steps must be taken. However, after filing a claim with DFEH and/or EEOC, the complaining employee may seek to obtain a “right to sue” letter, which will allow them to bypass the administrative process and immediately seek a lawsuit. There are time requirements that must also be observed prior to filing a complaint and lawsuit. It is important to speak with an experienced employment law attorney to discuss this process in further detail.

Are There Exceptions To Employment And Labor Laws In California?

Yes. Labor and employment laws generally apply to most workers in California. However, the first test for exception depends on the employee’s status: are they an employee or independent contractor. In general, the rights and protections for employees do not extend to independent contractors. While, at first glance, this may not seem very fair, the logic is based on the fact that independent contractors are technically self-employed.

However, too often independent contractors are misclassified as such when they should be classified as employees. There are a number of factors that are evaluated when determining whether a misclassification has occurred. These factors include the degree of control the worker has over the manner, schedule, methods and means of the job to be performed; the permanence of the worker with the company (i.e., whether hired for one temporary assignment or ongoing, indefinite work); supplying of his or her own materials or provided by the company; and whether the worker is paid per job or by the hour, among many other factors.

In the case of undocumented workers, employment laws apply to them as well. The fact that workers may lack sufficient documentation demonstrating their legal status in California does not permit employers from engaging in discriminatory acts. Most commonly, undocumented workers are under paid; paid less than the minimum wage. This is illegal. It is also illegal for employers to retaliate against an undocumented worker by reporting them to immigration authorities if that worker files a wage claim.

What Are My Rights To Wages And Salary, Rest and Meal Breaks, And Leave Time?

In general, workers must be paid the minimum wage, unless they are exempt employees who are salaried. A salaried employee, however, must be paid a minimum salary that is at least twice the minimum rate for 40 hours per week over a 52 week period. Typically, employees in sales positions are given compensation in the form of commissions rather than hourly wages or a salary. Commission based compensation is permissible, however, the commissions must equate to the minimum wage standard.

Overtime must be paid at a rate that is one and one-half times the employee’s normal rate for every hour or fraction of an hour worked over eight hours in one day or 40 hours a week. The exception to this rule is if the employee is an exempt, or salaried, employee where their pay is not tied to hours worked.

Generally, most employees have the right to meal and rest breaks over the course of their shifts. For every four (4) hours worked, a worker must have a 10 minute break and an unpaid 30 minute meal break for every five (5) hours worked. A log of all hours worked and breaks taken should be kept by an employer for at least three (3) years.

Vacation, holiday, or sick time is not required to be provided under California law. If an employer does decide to provide vacation time, they may impose policies as to when those vacations may not take place. For example, if there is a particular time every year that the company experiences increases in business and needs all of its employees, the employers may enact a policy that does not authorize vacation time to be used during that period. Vacation time, unlike sick time, counts as what is known as deferred wages. If an employee does not use their vacation time, they cannot be denied being paid out the value of that time upon resignation or termination of employment. California prohibits these types of “use it or lose it” policies.

Sick time is not a form of deferred wages and cannot be paid out upon termination or resignation. Sick time may be used, however, to care for the illness of a child, parent or spouse (up to one half of the sick time available). After that, if additional time is needed, the employee may be able to take additional unpaid time off under the California Family Rights Act and/or the federal Family Medical Leave Act. Under these acts, the employee may also qualify for partial paid time off under the California Paid Family Care Leave Act.

Upon resignation or termination from employment, employers must make the employees final wages immediately available. In the case of termination, a final paycheck must be issued within 72 hours. Failure to provide a timely final paycheck may subject the employer to additional fines and penalties under California law. For example, if an employee is terminated (justifiably or wrongfully) but is not given their final paycheck until over a month later, the employee may recover the amount of their paycheck plus 30 days of “waiting time” penalties at their daily employed rate. If an employee gives notice of resignation more than 72 hours in advance, their final paycheck must be available upon their last day.

It is very important to remember that these rules are not applicable to every circumstance and require an investigation and evaluation of the applicability of the law. It is important to first consult with an experienced employment law attorney to discuss your options, rights, and protections.

 

What Deductions May My Employer Make From My Paycheck?

Employers may not make unauthorized deductions from an employee’s paycheck. The only deduction an employer may make are federal and state income tax withholdings, Medicare and social security payments, and any union dues (if applicable). If the employer experiences loss due to the employee’s performance, they may only make deductions if the losses were caused by the employee’s willful misconduct, gross negligence or dishonesty. Any other deductions must be previously authorized, in writing, by the employee for the employer to make.

I Believe That My Workplace Conditions Are Unsafe, What Are My Rights?

Employees have the right to report any workplace conditions that they feel may be hazardous to their health and safety, and that of others. Depending on the circumstances, an employee may even be permitted to refuse to perform work if they reasonably believe that performance of the work would result in serious bodily injury or death. Under those circumstances, the employer is prohibited from retaliating by terminating the employee’s employment.

Reporting unsafe conditions may be made directly to the employer, however, if the employee fears retaliation (or simply wants to remain anonymous), they may report the working conditions directly to the California Occupational Safety and Health (Cal/OSHA) inspectors to check on the workplace.

What Rights Do I Have If I Suffer An Injury At Work?

Depending on the circumstances, employees may be entitled to financial assistance for injuries and any missed work as a result. Injuries that occur “on the job” entitles workers to receive benefits under the Workers’ Compensation Insurance Program. In some case, however, injuries may result in a long term or permanent disability that does not allow the employee to return to work. If an injury, illness, or other disabling condition (physical or mental) that is not directly related to the employment is suffered by a worker, they may qualify for benefits under the California State Disability Insurance program, federal Social Security disability, or another disability insurance plan.

What Rights Do I Have If I Am Disabled?

Persons with disabilities have protections and rights under the law and may not be discriminated against by their employers. However, whether or not an employer must accommodate the disability depends on a few factors. These factors include the size of the company, the nature of the job, and the nature of the disability. A disabled worker must be able to carry out the full essential functions of their job responsibilities with or without reasonable accommodations.

For instance, an employee at a tech company, who is a paraplegic and has no use of their legs, could perform their job’s essential functions with reasonable accommodation, such as, accessibility for a wheelchair and modified desk. The same paraplegic, however, may not be able to be accommodated if they work as a mover for a moving company, which requires use of their legs and the ability to move heavy furniture and drive a truck.

Employers are required to provide reasonable accommodations, and to engage in good faith investigations as to whether or not a worker’s disabilities can be accommodated reasonably.

I Believe I Am Being Sexually Harassed At Work, What Are My Rights?

Sexual harassment is not tolerated under California law because it is a form of discrimination. Employers are required to ensure that their workplaces are free of all forms of sexual harassment and discrimination. Sexual harassment is commonly viewed as overt, unwelcomed advances by a colleague or superior, accompanied by inappropriate touching or groping. In reality, however, sexual harassment is not always so stereotypical and obvious.

Sexual harassment may come in the form of innuendos or sexually suggestive comments that make an employee feel uncomfortable or unwelcome. Generally, sexual harassment fits into one of two types: quid pro quo or hostile work environment. Quid pro quo refers to a superior requiring an exchange of sexual favors for employment benefits or promotions. Any retaliation for refusing such requests is further evidence of a quid pro quo environment.

Hostile work environments based on sexual harassment involve unwelcomed advances (physical or verbal), innuendos and sexually suggestive comments, and any other conduct that changes the nature of the work environment. The employee does not need to be the direct victim of the harassment, but simply must feel the negative change in nature of the workplace in order to be a victim.

Sexual harassment can be a very complicated issue and should be reported immediately, either to an employee’s superiors or to the EEOC and/or the DFEH. An experienced employment law attorney should also be consulted to discuss options and the appropriate steps to rectify the wrongful behavior and conduct.

 

 

 

[1] California Constitution, article I, section 1.