|YOUR RIGHTS AND THE LAWS THAT PROTECT THEM
The United States Constitution guarantees every American citizen certain civil rights of personal liberty. Among these fundamental civil rights and liberties are the freedoms of speech, religion, assembly, and to petition the government, and the rights to bear arms, to procedural due process, and to be free of unreasonable searches and seizures and cruel and unusual punishments. Unfair treatment alone does not necessarily involve a violation of civil rights and liberties. It's discrimination only if you're treated unfairly because you have one of the characteristics protected by the Constitution, such as age, disability, race, religion, or sex.
You've heard people complain that their "civil rights" have been violated, but what does that really mean? "Civil rights" are the rights of personal liberty guaranteed to every U. S. citizen, regardless of race, religion, sex, age or disabilities. The underlying principle is that no one should be punished for the circumstances into which they were born.
Under federal law, an employer doesn’t have to hire, or promote the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include: Age, Race, Sex, Religion, National origin, Disability and, in the state of California, Sexual Orientation and Marital Status.
An interviewer isn’t allowed to ask questions relating to these characteristics. For example, an interviewer cannot ask whether you are married or are you planning to get married. They cannot ask if you have children or are planning to have children. They cannot ask about your sexual orientation, where you born or whether you ever been arrested.
An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job’s requirements. Some examples might be: Have you ever been convicted of a crime; Can you prove that you are eligible to work in the US; Can you do this job with or without reasonable accommodations?
Further, a previous employer is free to provide any non-confidential information about you, so long as it’s true and isn’t provided to maliciously harm the employee. An employer who provides false information that disparages the employee may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee’s job performance and confirm only dates of hire and separation, plus wage or salary information.
In California, employees are presumed to be “at will.” At-will employees may be terminated for any reason or any reason at all, so long as it’s not an illegal reason. Generally, employees that work under an employment contract can only be terminated for reasons specified in the contract. In California, the at-will presumption can be overcome by evidence that despite the absence of a specified term of employment, the parties agreed who the employer's power to terminate would be limited in some way.
Many employers require employees to sign an agreement to submit any dispute that may arise out of the employment to binding resolution by one or more impartial third persons. This type of agreement is referred to as Contractual Arbitration.
An agreement for binding arbitration of a dispute waives the right to jury trial and is generally enforceable under both state and federal law as long the agreement: is in writing; is equally binding on both parties; allows neutrality in the rendering of the decision; allows an opportunity for both parties to be equally heard; and provides for a binding decision.
If the arbitration agreement sets a deadline for demanding arbitration that is shorter than the statute of limitations on the claim and if the employee fails to demand arbitration within the time set by the agreement, delay in demanding arbitration may forfeit the employee’s right to file their claim. Thus, it is very important that you are familiar with all deadlines set forth in the agreement. Failure to read or understand the arbitration clause is generally no defense to its enforcement.
One of the primary concerns regarding enforcement of arbitration agreements is the excessive costs involved in arbitrating claims. These costs can preclude an employee from effectively vindicating his or her legal rights. In California, an employee can not be required to pay any portion of arbitrator's compensation in order to secure resolution of statutory claims arising under Title VII or the Fair Employment and Housing Act.
The remedies that the arbitrator may award vary, depending on the arbitration agreement as well as the remedies provided by statute. In most instances, however, the Arbitrator may grant any remedy or relief allowed by the applicable law. Thus, certain provisions contained in arbitration agreements which preclude the full scope of relief otherwise available under the applicable law, may be held to be invalid.
While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer’s policies and procedures. An employee handbook also provides more convenient access by employees and managers.
At a minimum, an employee handbook should include: a statement regarding the at-will employment relationship; an equal employment opportunity statement; a policy regarding sexual and other types of harassment in the workplace; Internet access, e-mail, and voice mail policies; the Family Medical Leave Act.
Discrimination law is the branch of law that refers to unfair or unequal treatment that is motivated by an animus towards a particular characteristic protected by the federal or state anti-discrimination laws. These laws include: Title VII of the Civil Rights Act of 1964, the Fair Employment and Housing Act, the Rehabilitation Act and the American’s with Disabilities Act.
"Disparate treatment" is intentional discrimination against one or more persons on prohibited grounds; i.e., treating similarly situated individuals differently in their employment because of a protected characteristic. Protected categories include: Age, Race, Sex, Religion, National origin, Disability and Pregnancy. In the state of California, Sexual Orientation and Marital Status are also considered protected classes.
It is important to understand that under both state and federal law, an employer can treat its employees unfairly for any number of reasons, as long as those reasons don't involve an employee’s civil rights and liberties. For instance, a person cannot be discriminated against because of their eye color or the way they part their hair. It's only discrimination if the conduct was motivated by the employer’s animus towards a protected characteristic.
To prove discrimination, an employee must establish that the terms or conditions of their employment were altered in some significant way and that intentional discrimination was the "determinative factor" for this alteration. Although rarely encountered, disparate treatment may be proved by direct evidence of the decision maker’s discriminatory intent. In most cases though, there is no direct evidence of discrimination by the employer. Therefore, discrimination claims must be proved indirectly or circumstantially. To this end, courts looks to facts which would suggest the action occurred under circumstances suggesting a discriminatory motive (e.g., persons outside the protected class having equal or lesser qualifications were given more favorable treatment).
Sexual harassment can take the form of either an economic "quid pro quo," where an employee's subjection to sexual conduct is linked to the grant or denial of job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion; or creating a "hostile environment," where the sexual conduct had the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
The essence of the quid pro quo theory of sexual harassment is that "a supervisor relies upon his apparent or actual authority to extort sexual consideration from an employee. The typical case involves some form of sexual advance or proposition by a supervisor with an express or implied threat that if the employee refuses, he or she will be terminated or demoted, or lose other job-related benefits; or alternatively, the employee may be promised better treatment, such as a promotion, transfer, raise or favorable recommendation, if the employee submits to the sexual advances.
Under federal law, to establish a violation on grounds of quid pro quo sexual harassment, an employee must prove: the employee was subject to unwelcome sexual advances, conduct or comments by a supervisor with immediate or successively higher authority over the employee; the harassment complained of was based upon sex; and the employee's reaction to harassment complained of affected tangible aspects of the employee's compensation, terms, conditions or privileges of employment.
"Hostile environment" sexual harassment cases may involve various forms of verbal and physical conduct, of both a sexual or nonsexual nature, which have the purpose or effect of creating a hostile or offensive working environment. To state a case for "hostile environment" sexual harassment under either state or federal law, an employee must establish that: he/she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was "so severe or pervasive" as to "alter the conditions of the victim's employment and create an abusive working environment." In addition, in order to render the employer liable for the hostile environment harassment by a coworker, plaintiff must prove the employer knew or should have known of the harassment and failed to take prompt remedial action.
The level of severity or pervasiveness required to transform a merely annoying or uncomfortable work environment into an actionable, sexually harassing "hostile environment" is usually a question of fact, to be determined by looking at all the circumstances, including: frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; whether it unreasonably interferes with an employee's work performance. Under federal law, this is measured by both, an objective persons viewpoint as well as the victim's own subjective perception. Under California law, a “reasonable victim" or "reasonable woman" standard applies to cases brought under the FEHA
OTHER FORMS OF HARASSEMENT
Under both state and federal law, harassment based on race, religious creed, color, national origin, ancestry, disability, sex, age (and marital status or sexual orientation in the state of California) is specifically prohibited. Unlike sexual harassment claims, in which an employee can state a cause of action under a theory of either quid pro quo or hostile environment harassment, claims of harassment on other bases involve only the hostile environment theory.
Hostile work environment claims based on non-sexual forms of harassment are reviewed under the same standard as those based on sexual harassment. Thus, allegations of a hostile workplace must be assessed from the perspective of a reasonable person belonging to the same protected class as that of the victim. Like sexual harassment hostile environment claims, the victim of harassment must show a "concerted pattern of harassment of a repeated, routine or a generalized nature" and that the alleged conduct constituted an "unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to do his or her job." As with all forms of harassment, an employer has a duty to prevent and remedy instances the conduct and, when it refuses to take prompt remedial action, it may be held liable for the harassment.
An employer may not take any adverse employment action against an employee who has opposed any practice made unlawful by state or federal anti-discrimination laws, or made a charge, testified, assisted, or participated in any manner in any investigation, proceeding or hearing under such laws.
To establish a case, for statutory retaliation, an employee must establish that: he our she engaged in a protected activity; the employer subjected the employee to an adverse employment action; and the adverse action was directly motivated by the fact that the employee engaged in protected activity.
A retaliation claim may be brought by an employee who has opposed conduct that the employee reasonably believes to be discriminatory, even if a court later determines the conduct was not actually prohibited by law. As long as the employee's mistake was reasonable, it is immaterial whether the mistake was one of fact or law. However, the opposition must have been communicated to the employer in a way to sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.
Further, the employee must show, that the adverse action taken against him or her materially affect the terms, conditions or privileges of employment and occurred subsequent to or contemporaneously with the employee's exercise of protected rights. Where a retaliatory course of conduct is alleged, a series of separate retaliatory acts collectively may constitute an "adverse employment action," although none of the acts individually is actionable.
Although an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, an employer cannot terminate for an unlawful reason or a purpose that contravenes fundamental public policy. When a termination is motivated by a reason that contravenes public policy, the employer may face liability for what is commonly referred to as “Wrongful Termination.”
Ironically, to establish a claim for wrongful termination, an employee need not actually be terminated from his or her employment. It is enough that the employer fundamentally altered some significant aspect of the employee’s job. However, the termination or change to a fundamental aspect of the employee’s job must have been motivated by the employee having engaged in some form of protected activity. The protected activity in which the employee engaged must also be: delineated in constitutional or statutory law (or ethical rules or regulations enacted under statutory authority); inure to the benefit of the public (rather than merely serving the interests of the individual); well established at the time of discharge; substantial and fundamental.
Types of recognized protected activity include: complaining about or assisting another in a complaint about discrimination, retaliation or harassment; refusing to sign a non-competition agreement; refusing to sign a document releasing the employer from liability for fraud and intentional acts; complaining about the employer’s failure to pay wages; disclosing to a government agency the employer's misappropriation of public funds; complaining about an illegal, unethical or unsafe practices which affect the public at large; testifying at hearing or appear in court as a witness; advocating appropriate medical care for patient; discussing wages with coworkers; and engaging in union related activities; complaining about unequal pay; engaging in political activity.
Types of activity that in not recognized being protected include: reporting other employee's misconduct in prior employment; reporting misappropriation of employer's funds: refusing to agree to arbitration; asserting fraud claims against employer; refusing to dismiss personal injury suit: exercising some free speech rights; conduct protected under Labor Code §96(k) which prohibits discharging or discriminating against an employee for authorizing the Labor Commissioner to take assignment of wage claims.
RIGHTS TO ACCOMODATION FOR DISABLED EMPLOYEES
An employer must provide a reasonable accommodation for an applicant or employee with a known mental or physical disability unless the accommodation would cause undue hardship. To establish a "failure to accommodate" claim, an employee must show he or she suffers from a cognizable disability under the law and that the employer defendant failed or refused to reasonably to accommodate the employee’s disability.
Although this sounds like a fairly simplistic standard, to establish the existence of a legally cognizable disability, the employee must prove that he or she suffers from a physical or psychological condition or impairment that limits a major life activity (under federal law the limitation must be “substantial” in nature) and that he or she could perform all of the essential functions or the position being sought with or without an accommodation.
Once an employer becomes aware of an employee’s need for an accommodation, the employer has an affirmative duty to engage in a timely, good faith interactive process with the employee so that it can determine whether a reasonable accommodation can and should be provided. This requires not only the employer’s willingness to engage in the process, it also requires that the employee understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions that must be met to accommodate the employee.
Types of reasonable accommodations include, but are certainly not limited to: making facilities accessible to and usable by disabled individuals; job restructuring; offering part-time or modified work schedules; reassigning to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials or policies; and providing qualified readers or interpreters.
Under both, state and federal law, eligible employees are allowed to take up to 12 weeks of unpaid medical leave, with continued medical benefits and restoration of their original position upon return. An employee is eligible under state and federal law when they: have worked for the same employer for the previous 12 months; have worked at least 1250 hours in the previous 12 months; and are employed by federal, state, and local governments and agencies or a private employers that have employed 50 or more people during any 20 weeks in the calendar year.
To be eligible, the employee must suffer from a serious health condition which makes the employee unable to perform the functions of his or her position. Once an employer has been put on notice of an employee’s need for medical leave, that employer has a duty to provide information about the employee’s leave rights and responsibilities. Although an employer may require an employee to comply with certain internal procedures for requesting a leave, where the employee gives timely verbal or other notice, the employer may not rely on the employee's failure to follow internal procedures to deny or delay a leave request. Thus, even employees who do not meet the fundamental qualification requirements may still be eligible for protected leave if the employee notifies the employer that a leave is needed and the employer either fails to confirm or deny the employee's eligibility as of the date the leave is to begin or, for that matter, even mistakenly confirms eligibility at any time up to the date leave is commenced.
There are two type of liability an employer may face under state and federal leave laws. The first occurs when an employer has denied or otherwise interfered with an employee’s right to take protected leave and the second occurs when the employer retaliates against an employee for his/her use of protected leave.
The California pregnancy disability leave law ("PDLL") requires employers to provide employees up to four months of leave for disability due to an employee's pregnancy, childbirth or related medical conditions. In addition, an employer may be required, to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job.
Pregnancy disability leaves under the PDLL run concurrently with leave taken under the FMLA. Thus, if an employee takes 12 weeks of leave due to her pregnancy, childbirth or related medical conditions and the employer gives the proper FMLA notices, the employee will have exhausted her annual entitlement to FMLA leave and will have exhausted 12 weeks of the four-month PDLL leave entitlement.
Under California law however, CFRA leave and pregnancy disability leave are treated as two separate and distinct rights. Thus, following a pregnancy disability leave, an employee will still have the right to take a CFRA leave of up to 12 weeks if she was actually disabled by pregnancy for 4 months, and she meets CFRA eligibility rules. If the maximum amount of both types of leave is taken, the maximum total leave entitlement will be 4 months plus 12 work weeks.
To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:
For employees who voluntary or involuntary termination of employment for reasons other than gross misconduct or due to a reduction in numbers of hours worked and for their spouses and their dependent children who have also lost coverage by the employee because of one of the qualifying events listed above.
Some states have enacted "mini" COBRA laws similar to the federal COBRA law. In California, employees of employers with 2-19 employees can qualify for 36 months of continuation coverage.
In California, the Employment Development Department administers the unemployment insurance program. For Federal employees, the United State Department of Labor administers the unemployment insurance program.
Worker’s compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee’s recovery.
The amount of compensation paid to an employee depends upon the classification of his or her disability: permanent total disability, temporary total disability or temporary partial disability.
Both, the US Department of Labor and California’s workers' compensation system are premised on a trade-off between employees and employers. Employees promptly receive workers' compensation benefits for on-the-job injuries, and the limited workers' compensation benefits are the exclusive remedy against the employer, even when the employer was negligent.
There are specific time limitations for filing your workers’ compensation claim so it is important that you notify your employer immediately after suffering an on-the-job injury. You employer is obligated to provide you with the proper information and forms necessary to file a workers’ compensation claim.
WAGE AND HOUR LAWS
WHEN PAYROLL MUST BE PAID
Certain provisions within California’s Labor Code further provides that all wages and benefits are payable within 72 hours of an employee’s notice of intention to quit or on the last day of his/her employment in the event that such notice exceeds 72 hours. When an employee is terminated, all wages and benefits are payable immediately.
An employer that fails to pay all wages due within the legally mandated time period may also be liable for triple the amount of any damages the employee suffers "as a direct and foreseeable consequence" (e.g., loss of employee's property or credit). Where the employer’s failure to pay wages is willful, the employer may be liable for an additional 30 days wages, interest and attorney’s fees and costs.
The statute of limitations for an employer’s failure to pay overtime compensation three years before the filing of the complaint. Under federal law, an employer that fails to pay required overtime wages may be held liable for liquidated damages of up to double the amount due and, under California law, the employer may be held liable for up to 30 days of additional wages.
REST AND MEAL BREAKS
It is also important to note that like federal provisions, California Labor Code provisions protecting the welfare of workers are non-waivable. In other words, they cannot be contravened or set aside by a private agreement, whether written, oral or implied.
An employer who fails to provide meal or rest periods as required by an applicable Wage Order must pay the employee one additional hour of pay at the employee's regular rate of pay for each work day that the meal or rest period was not provided.
A title alone is of little or no assistance in determining the true importance of an employee to the employer or his exempt or non-exempt status. Whether or not an employee falls under one of the recognized exemptions is often a question of fact. But, the burden is on the employer to prove the necessary facts to establish an exemption.
Generally speaking, salaried executive, administrative and professional employees are the most common types of employees exempt from the federal FLSA overtime and minimum wage protections as long as: they are compensated on a salary level of at least $455 per week; their primary duty is performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and their primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Employees earning more than $100,000 per year (whether through salary, commission and/or nondiscretionary bonus) are considered "highly compensated" employees and are also exempt from FLSA overtime and minimum wage requirements if they customarily and regularly perform one or more of the duties of an executive employee.
Under California law, exemptions from statutory mandatory minimum wage and overtime provisions are much more narrowly construed. As under federal law, persons "employed in an administrative, executive, or professional capacity" are exempt from both the minimum wage and overtime provisions of California law.
To be exempt under this category, an employee must: be primarily engaged in in duties that meet the test of the exemption for more than 50% of their time;" and "customarily and regularly exercise discretion and independent judgment in performing those duties;" and earn "a monthly salary equivalent to no less than twice the state minimum wage for full-time employment."
To be an exempt executive employee, the employee’s duties and responsibilities must involve management of the enterprise; they must customarily and regularly direct the work of at least two or more other employees; and must have the authority to hire and fire, or to command particularly serious attention to his or her recommendations regarding such actions. To meet the test of administrative exemption, the employee’s duties and responsibilities must involve performing work directly related to management policies or general business operations of the employer or its customers. And, to be an exempt professional employee, the employee must be either licensed and "primarily engaged" in an enumerated profession, or "primarily engaged in an occupation commonly recognized as a learned or artistic profession."
In addition to the exemption for "executive, administrative and professional" employees, outside salespersons are also exempt from California law requirements as to both minimum wage and overtime premium pay. An "outside salesperson" is someone who regularly works more than half of his or her working time in sales activities outside the workplace. Certain employees receiving more than one half of their total salary from sales commissions may also be exempt from overtime pay requirements if that person’s earnings exceed one and one-half times the minimum wage. To constitute "commission" wages, the employee must be involved principally in sales activities (not manufacturing or rendering service); and his or her compensation must be a percentage of the price of the product or service.
INDEPENDENT CONTRACTOR VERSUS EMPLOYEE
Among the relevant factors for determining whether a worker is an employee or an independent contractor under California law are the following: the employer's right to control the manner and means of performance; whether the employment relationship may be terminated at will; whether the worker engages in an occupation or business distinct from the employer's; whether the type of work performed is usually done under the employer's direction, or by a specialist without supervision; the skill required to perform the work; who provides the instrumentalities, tools and place of work; the length of time for which services are to be performed; whether the worker may hire and fire others; whether payment for work is by time, piece, rate or job; whether the services are part of the employer's regular business; and whether the parties believe they are creating an employment or independent contractor relationship.
The importance of and weight to be given each factor depend on the totality of the circumstances; however, the right to control the means and manner of job performance is generally the most important consideration.
Before filing suit on a statutory employment discrimination claim under state or federal law, the aggrieved employee must have exhausted his or her administrative remedy. Basically, this means that the employee must have filed a timely and sufficient charge with the appropriate administrative agency and obtained a "right-to-sue" letter from that agency. Failure to do so may bar any civil action on the employee's claim.
The appropriate agency for filing charges of employment discrimination in violation of Title VII is the Equal Employment Opportunity Commission (EEOC). The appropriate agency for filing charges of employment discrimination in violation of the California Fair Employment and Housing Act (FEHA) is the California Department of Fair Employment and Housing (DFEH).
The purpose of the administrative exhaustion requirement is to give the administrative agency an opportunity to investigate and conciliate the claim. In cases appropriate for administrative resolution, the agency can order and monitor corrective measures; and informal agency hearings provide a more economical and efficient means of resolving a dispute than judicial proceedings. Even in cases appropriate for judicial resolution (as where the facts support a claim for compensatory or punitive damages), the administrative exhaustion requirement may lead to settlement and eliminate the unlawful practice or mitigate damages.
You can file an DEFH complain in person, by mail or by telephone. You will be asked to provide your name, address and telephone number, and you must provide information on your employer. You will also be asked to provide a concise description and the dates of the discriminatory, harassive and/or retaliatory actions.
The DFEH will investigate your claim by contacting your employer, interviewing witnesses, visiting the jobsite, requesting documents, etc. If you are still employed, it is important to understand that your employer is prohibited from taking action against you for filing a complaint or complying with an DFEH investigation. This is known as “retaliation” and can subject the employer to additional liability.
If the DFEH determines illegal discrimination has occurred, it may seek a settlement between the employer and employee, or it may sue the employer in court. If the DFEH cannot determine if illegal discrimination occurred, or if settlement with the employer is not possible, it will dismiss the claim and issue the employee a “right to sue” letter.
Once the DFEH issues a letter of right to sue, the employee must provide a copy of the complaint and notice of right to sue to the employer via certified return receipt mail.
The employee has one calendar year from the date of issuance of the notice of right to sue within which to file his or her civil law suit. Failure to follow these time constraints will result in a complete waiver of any right the employee may have otherwise had to pursue his/her claims.
FILING A CLAIM WITH EEOC
You can file an EEOC claim in person, by mail or by telephone. If you are a federal employee, you must contact your Agency’s EEO office directly. You will be asked to provide your name, address and telephone number, and you must provide information on your employer. You will also be asked to provide a concise description and the dates of the discriminatory actions.
After the EEOC receives your complaint, it will investigate the claim by contacting your employer, interviewing witnesses, visiting the jobsite, requesting documents, etc. If you are a federal employee, the EEO investigator will conduct the investigation. In either event, your employer is prohibited from taking action against you for filing a complaint or complying with an EEOC investigation. This is known as “retaliation” and can subject the employer to additional liability.
If you have also filed a claim with the Department of Fair Employment and Housing, the EEOC will not take any action for 60 days in order to give the other agency time to act. In certain situations, the time for filing an EEOC claim may be extended to 300 days.
If the EEOC determines illegal discrimination has occurred, it may seek a settlement between the employer and employee, or it may sue the employer in court. (It is rare that the EEOC will sue employers. The EEOC doesn’t have the resources to continually engage itself in lawsuits.) For federal employees, once the investigation has been completed, you will be given the option of requesting a hearing before an Administrative Law Judge or waiting for the Agency to issue a final determination.
A settlement will attempt to make the employee whole. It may include front pay, back pay, promotion, reinstatement, reasonable accommodation, payment of employees’ fees, and other sorts of remedies. If the EEOC cannot determine if illegal discrimination occurred, or if settlement with the employer is not possible, it will dismiss the claim and issue the employee a “right to sue” letter, which gives the employee 90 days in which to bring an action against the employer.