Los Angeles Employment Law Attorney
Whether the solution is negotiation of a satisfying settlement, or taking the legal fight aggressively into a state or Federal courtroom, Los Angeles Employment Law Attorney Stephen M. Rinka is ready to stand up for his clients rights to fair compensation for damages. His clients have had great success in winning legal arguments he has prepared, including for the following areas of employment law:
Employment Law
At The Rinka Law Firm, PC we are well versed in all areas of employment litigation. Below is information about the various areas within employment law that we practice.
Wage and hour disputes
Unpaid overtime or wages, commissions and vacation pay
Discrimination or harassment
Wrongful termination
Failure to provide meal or rest periods
Wrongful Termination
All employees in California are considered to be at-will employees, unless an individual has signed an employment contract for a specific period of employment. As an at-will employee your employer can terminate you at any time without any reason. Likewise, an employee can quit his or her job without notice to pursue a more promising job. Despite the fact that you are an at-will employee, California law provides you with protections against improper termination due to illegal discriminatory reasons.
The California Fair Employment and Housing Act (“FEHA”) provides that even an at-will employee cannot be terminated if the termination is based upon a “protected characteristic.” Under the FEHA, an employer is not allowed to terminate an employee if the reason for the termination is due to an employee’s disability, age (40 and over), gender, race, religion, national origin, sex or sexual orientation, or sexual identity.
Examples of when your employer may have improperly terminated involve situations, such as your employer terminates you for taking time off work to recover from a work-related injury. Another instance of wrongful termination can involve a situation where you disclose your pregnancy to your supervisor and then suddenly your supervisor comes up with problems with your work and suddenly terminates you. If you are an employee and you are terminated for a certain action, but younger employees in the company commit the same action and are not reprimanded, you may have a case for wrongful termination based on age. In these situations, being an at-will employee does not protect the employer from terminating you.
Discrimination
Employment discrimination occurs when an employee is treated differently due to their “protected class.” Protected classes include a disability, age (40 and over), gender, race, religion, national origin, sex or sexual orientation, or sexual identity.
Discrimination can take on many different forms in the employment context. In the instance where an employee is disabled and the employer changes the employee’s shift for no reason in an effort to make work more difficult, this could show discrimination. If the employer is continually promoting men over women this may establish gender discrimination. If an employee suffers from a known medical condition by the employer and the employer makes the work environment insufferable for the employee, this could be discrimination.
In the case of a claim for employment discrimination, the reason for the discrimination is due to the employer taking adverse actions against the employee because of his or her protected class.
Pregnancy Discrimination
It happens when a woman discloses that she is pregnant to her supervisor that there is a negative reaction by the employer. This typically stems from the belief that a pregnant woman will become a drag on the employer because she will have to take time off for doctor visits, call in sick and take an extended leave after giving birth. Under California law, an employer is required to provide reasonable accommodations for a pregnant woman to take care of her health care needs during her pregnancy as well as take time off following the birth of the child.
Pregnancy can be stressful enough and having to worry about whether you will have a job following the birth of your child is something that you should not have to worry about. If an employer all of sudden starts writing you up for poor work performance and then terminates you, after giving notice of your pregnancy, this would indicate that the termination was a result of your pregnancy.
California provides many laws to protect a woman’s job while they are pregnant, including FEHA, the Family Medical Leave Act, the California Family Rights Act and Pregnancy Disability Leave. These are complicated laws that require the expertise of an employment lawyer in order to ensure that your rights were not violated. If you were terminated during pregnancy or shortly after returning to work, contact the attorney at The Rinka Law Firm, PC to see if you have a case for wrongful termination.
Harassment
Similar to discrimination, a claim for unlawful harassment occurs when a supervisor makes unwanted remarks or unfairly criticizes a person regarding his or her protected class. It is important to understand that having a supervisor who makes critical remarks about your job performance or who has poor management skills and poor manners does not give rise to a claim for harassment. Having a manager or supervisor that is a “jerk” is not unlawful in California. If the manager is a jerk to everyone, it then would indicate that the manager is not singling you out for harassment, but treats everyone the same.
Protected classes of people for purposes of harassment include age (40 and over) ancestry, color, religious creed (including religious dress and grooming practices), disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), genetic Information, military and veteran status, national origin (including language use restrictions), race, sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, and gender expression sexual orientation.
Furthermore, harassment can take the form of both verbal and written, including text messages and emails. Familiar examples of harassment include the making of jokes about a person’s age, or sending graphic and improper sexually explicit material at work. Many times the harassment can become so interoperable that the employee has no choice but to resign from his or her position. In situations where you are being harassed, it is important to document when the harassment occurs or keep copies of the improper the text messages and emails. These things will help to later prove the harassment that the employee was exposed to.
Disability Accommodation
Under the California Fair Employment and Housing Act (“FEHA”) an employer must make a reasonable accommodation for an employee who suffers from a disability. FEHA broadly construes physical and mental disabilities as well as medical conditions, allowing for broad protections from discrimination based on an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.
Two fundamental considerations arise when determining whether an employer has failed to accommodate a disability under FEHA. First, did the employer “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless accommodation would “produce undue hardship to the employer’s operation.” Second, did the employer “fail to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee.” If the employer fails to make a reasonable accommodation or no accommodation for a known disability, the employer may be liable for failing to accommodate a disability.
Examples of reasonable accommodations under FEHA include making facilities accessible to and usable by disabled individuals; job restructuring, such as offering part-time or modified work schedules, reassignment to a vacant position, or holding a position open for an employee who needs time to recuperate or heal. Commonly, an employee may need time off to recover from a surgery relating to a workplace injury. In this situation the employer is required to allow the employee to take time off work and hold the position open while the employee recuperates.
Retaliation
Workplace retaliation can come in the form of requesting your employer for a workplace accommodation due to a disability and in response to this request you experience an adverse employment action such as a termination. In this instance, the employee was retaliated against for requesting an accommodation.
The more common form of workplace retaliation occurs when an employee reports a violation to a state to law enforcement or a state or government agency. In response to reporting this violation the employee is terminated. These employees are commonly referred to as “Whistleblowers.”
An employee does not need to know for sure whether an employer has violated the law before reporting the potential violation. An employee only needs to have a reasonably based suspicion of illegal activity. Naturally, an employee who is terminated shortly after disclosing the improper actions of his or her employer to a reporting agency would give rise to a whistleblower claim. However, even if the employer takes negative actions against the whistleblowing employee, that employee may have a retaliation claim.
Overtime
Non-exempt employees are employees who are to receive overtime anytime they work more than 8 hours a day or 40 hours a week. An employer can require that an employee first obtain permission from his or her supervisor prior to working overtime and if an employee works overtime without first obtaining permission, his or her termination is legal. However, the employer is still required to pay you for the unauthorized overtime.
When an employee has reached the threshold to receive overtime pay, the rate of overtime pay is one- and one-half times the employee’s base pay. So, if an employee is making $20/hour for their base pay, then their overtime pay will be $30/hour. An employee is entitled to double pay when they have worked beyond 12 hours in a single day or surpassed 8 hours on their seventh consecutive day of work.
Meal and Rest Breaks
Non-exempt employees are entitled to a 30 minute meal break when working five or more hours in a single shift. They are also entitled to a 10 minute rest period for every four hours worked, so when working an eight hour shift the employee is entitled to two 10 minute rest periods. The meal period does not have to be paid by the employer, but your 10 minute rest periods are to be taken while you are on the clock.
Your employer is required to allow you to take a 30 minute lunch break every time you work over 5 hours. If you are required to work through your lunch break you are entitled to a premium payment of one hour of pay for the missed lunch period. Likewise, if you are required to work through one or both of your 10 minute rest periods in one day, you are entitled to a one hour premium payment for the missed rest period(s).
When taking a lunch break or rest break, you are to be relieved of all work-related duties. This means that you are to be able to leave your workstation as well as leave the work premises. If your employer does not allow you to leave the work premises during your lunch or rest break, then you are entitled to a one-hour premium payment. Your employer is also required to provide you with a dedicated sitting area with access to amenities to prepare hot food.
Misclassification/Independent Contractor
In California, it is a rare situation that an individual performing work-related services for a company will be deemed an independent contractor and not an employee. Changes in California law make anyone who performs work for a company, unless they are performing services unrelated to the corporation’s primary purpose. For example, if a movie theater hires a plumber to fix a sink, the plumber is an independent contractor because they movie theater is not in the business of fixing sinks.
However, if a package delivery company hires drivers and classifies them as independent contractors, California will likely find the drivers to be employees because a package delivery company is in the business of hiring drivers to deliver packages.
A company looks to try and classify employees as independent contractors because then they do not have pay workers compensation insurance for an independent contractor or overtime nor does the California Labor Code apply to independent contractors. Accordingly, if a person is terminated due to their race, religion, disability, gender, pregnancy or other protected characteristics, they cannot sue the employer.
Given the protections that employees are afforded under California law, it is little wonder why an employer would try and classify an employee as an independent contractor. If you believe that you are wrongly classified employee, contact The Rinka Law Firm, PC to discuss your matter.
