Although California is an at-will state, this does not mean that employer is permitted to terminate an employee for any reason.  In this blog post, I will discuss when an employer’s termination or other negative action against an employee can be classified as a workplace retaliation.

Under California law, an employee has certain protections against termination or other adverse employment actions in an at-will employment arrangement.  In particular, an employer is forbidden from terminating or taking a negative action against an employee who commits one of the following acts:

• Reports workplace harassment, such as sexual harassment, racial harassment
• Reports  workplace discrimination
• Reports unpaid wages and unpaid overtime
• Participates in a lawsuit against his or her employer
• Reports workplace hazards or injuries
• Reports an employer’s illegal activities and violations of employee rights to a governmental agency

It is obvious the reason why an employer cannot terminate or reprimand an employee for reporting improper and/or illegal activities occurring in the workplace.   The legislature wanted to provide employees with protections against retribution for reporting an employer’s misconduct and/or that of its employees.  By providing employees with this protection, it fosters a safe workplace environment free of harassment and discrimination due to the fact that an employee can report misconduct without fear of retribution.

Naturally, in the real world, things are not so perfect. Instead, it is very common for an employee to suffer retribution for reporting improper or illegal activities committed by an employer and/or its employees.  Typically, in an employment lawsuit premised on the grounds that the employee was retaliated against for disclosing improper or illegal acts, the employee will suffer an “adverse employment action” within a relatively close proximity to when the employee disclosed the illegal or improper activity to Human Resources or a governmental agency.

Actions that could be considered retaliatory in an employment setting are as follows:

• Being terminated.
• Being written up for trivial matters after having a record of high performance reviews.
• Being demoted.
• A change in work duties or a change in work schedule in order to make it more difficult for the employee to perform his or her job.
• Being passed over for promotions.

These types of actions taken against an employee for reporting improper and/or illegal activities would give rise to a claim for workplace retaliation.

If you have suffered workplace retaliation resulting from the reporting of an improper and/or illegal activity by your employer, speak to an attorney at The Rinka Law Firm, PC at 310-556-9653 to discuss your case.  We are here to help.

With the end of 2018 just around the corner, it is time to look at the new California employment laws that will affect your rights as an employee.  The following is a list of new employment laws that will govern the employee-employer relationship beginning on January 1, 2019.

AB3109 (Disclosure of Sexual Harassment): This new law prohibits an employer from putting any provision in a settlement agreement or contract that prevents an employee (current or former) from testifying about criminal conduct or sexual harassment in an administrative, legislative or judicial proceeding.  Often when an employer settles a sexual harassment claim, there will be a confidentiality provision in the settlement agreement which prevents the employee from speaking about the harassment.  This provision essentially removes the confidentiality provision as it relates to an employee testifying at an administrative, legislative or judicial proceeding.

SB 224 (Sexual Harassment):  Under this law the types of relationships that can be subject to a claim for sexual harassment will be expanded.  In particular, this law provides examples of professional relationships where sexual harassment claims may authorize the DFEH to investigate the claim.  These professional relationships include lobbyists, elected officials, directors, producers, and investors.

SB 820 (Settlement of Sexual Harassment Claims): This law will prohibit a settlement agreement, entered into after January 1, 2019, from containing a provision that precludes an employee from disclosing information relating to claims of sexual assault, sexual harassment, gender discrimination or retaliation that was filed with the court or an administrative agency.  However, the settlement agreement can contain a provision that prohibits an employee from disclosing the monetary settlement amount.  Lastly, at the employee’s request, the settlement agreement may contain a provision that limits the disclosure of the employee’s identity or facts that would lead to the discovery of the employee’s identity.

SB 826 (Female Inclusion on Board of Directors): This law will require publicly held domestic and foreign corporations with principal executive offices in California to have at least one female director on the board by the end of 2019.  By the end of 2021, these corporation will have to comply with the following standards:(1) If the number of directors is six or more, the corporation shall have a minimum of three female directors; (2) If the number of directors is five, the corporation shall have a minimum of two female directors; and (3) If the number of directors is four or fewer, the corporation shall have a minimum of one female director.

SB 1123 (Expansion of Paid Family Leave): Under this new law, an employee will be entitled to paid family leave benefits beginning on January 1, 2021 for taking time off for if it is due to being called to active duty or a spouse, domestic partner, parent, or child being called to active duty.

SB 1252 (Payment for Copying of Payroll Records): This law clarifies that when an employee requests copies of his or her payroll records, the employer is responsible for the copying costs associated with copying the employee’s payroll records.

SB 1300 (FEHA Sexual Harassment Provisions): This law expands the Government Code by including a provision making it unlawful for an employer to require an employee to release a harassment and/or discrimination claim in exchange for a bonus, raise or continued employment.  It also makes employers liable for any kind of unlawful harassment by non-employees where the employer knew or should have known about the harassment and failed to take action.  Lastly, it makes it more difficult for harassment claims to be dismissed through the summary judgment process.

SB 1343 (Sexual Harassment Training):  Employers with 5 or more employees will be required to provide sexual harassment training.  Furthermore, employers will be required to provide at least 2 hours of harassment training to supervisory employees and at least one hour so harassment training to non-supervisory employees by January 1, 2020.

SB 1412 (Criminal History Inquiries): This law limits an employer’s criminal history check by having the employer consider only a “particular conviction” that is relevant to the job when screening applicants using a criminal background check.  Meaning the employer cannot go and scour an employee’s background looking for irrelevant crimes, giving the employee privacy relating to his or her background.

SB 1619 (Increase in the Sexual Assault Statute of Limitations): The statute of limitations for a sexual assault civil lawsuit is increased to ten years after the assault or 3 years after the plaintiff discovered or should have reasonably discovered injury as a result of the assault, whichever is later.

SB 1976 (Lactation Accommodation): This law modifies the current lactation law by requiring a lactation station to be something other than a toilet stall.  The law further provides that the station should be permanent, but can be temporary if:(1) the employer is unable to provide a permanent location due to operational, financial, or space limitations; (2) the temporary location is private and free from intrusion while being used for lactation purposes; and (3) the temporary location is not used for other purposes while being used for lactation.

If you have any questions about these new employment laws, please contact an attorney at The Rinka Law Firm, PC.  Our telephone number is 310-556-9653.

A common wage dispute that arises between an employee and his or her employer at the time that the employee either quits or is fired is what are the final wages the employee should be paid.  In addition, when is the employer required to pay the final wages.

WHEN AM I ENTITLED TO MY FINAL PAYCHECK?

The timing of when you should receive your last paycheck depends on whether you quit or are fired.  When you are terminated from your position, your employer is required to provide you with your final paycheck at the time of your termination.  See Labor Code Section 201.

If you quit your job without giving any prior notice and you do not have a written employment contract, then your employer has seventy-two (72) hours to pay all wages owed to you.  See Labor Code Section 202(a).  The final check can be mailed to your residence if you so desire and you provide your employer with the address.

If you provide your employer with at least seventy-two (72) hours notice that you intend to quit your job, then your employer is required to provide you with your final paycheck on your last day of work.  See Labor Code Section 202(a).

WHAT WAGES AM I ENTITLED TO ON MY LAST PAYCHECK?

Regardless if you quit your position or if you are terminated, the wages you are entitled to when you leave your employment is the same.  Specifically, when you leave your employment, you are entitled to all wages worked, including all overtime hours.  In addition, you are entitled to payment of all accrued and unused vacation time.

The wages must be paid to you by check.  If you had direct deposit with your employer, the direct deposit ends on your last day of employment.  Furthermore, your final paycheck can be deposited only if you authorize your employer to directly deposit your final paycheck.

WHAT IF I AM NOT TIMELY GIVEN MY FINAL PAYCHECK?

If you are not paid all your wages when you quit or are terminated, you may be entitled to waiting time penalties as prescribed by law.  Namely, if it is determined that the employer willfully withheld wages owed to you, you may be able to obtain waiting time penalties in an amount equal to your daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty (30) calendar days.

However, if there is a good faith dispute as to the amount of final wages owed to you, then waiting time penalties will not be assessed.  Also, if you refuse to accept your final check from your employer, then you will not be awarded waiting time penalties.

If you have any further questions, please contact an attorney at The Rinka Law Firm, PC at 310-556-9653.

Meal Periods

Under California law, an hourly employee who works six or more hours a day is entitled to an unpaid and uninterrupted 30 minute meal period.  During this 30 minute meal period, the employee is not required to perform any work related activities.  However, if the employee does not take the 30 minute meal period that does not necessarily mean that the employer is at fault.

In a case called Brinker Restaurant Corp. v. Superior Court, the California Supreme Court held that while an employer is required to allow an employee an uninterrupted 30 minute meal break when he or she works 6 or more hours, the employer is not required to police the employee to make sure the lunch is taken.  In other words, if your employer tells you that you are allowed to take a lunch period during a certain time period and you take your lunch breaks on certain days and you decide not to take lunch breaks on other days, the employer will likely not be found liable to you for your missed meal periods.  The California Supreme Court has shifted the responsibility of taking the lunch break onto the employee.

Now, under California Labor Law, if an employee misses a lunch period, that employee is entitled to one hour of additional wages for the day that the meal period was missed.  If the employer fails to pay the employee for the missed meal period, it potentially opens the employee up to significant fees and penalties.  However, if an employee chose to skip the meal period, then the employer is not required to pay the employee the additional hour’s wage for the day that the employee skipped his or her meal period.

In the instance where the employee is required to work through lunch at the request of the employer or attend a mandatory meeting during the lunch hour, the employer is required to pay the employee the one hour wage for that lunch period.  The hour wage that the employer is required to pay is the straight wage, not overtime, regardless if the employee worked more than 8 hours on the day that she or he was required to work through lunch.

Rest Periods

An employer is required to provide a paid 10 minute rest period for every 4 hours worked or fraction thereof.  Accordingly, if one is scheduled to work 8 hours that would entitle the employee to two paid 10 minute rest periods.  As is the case with lunch periods, an employee is entitled to one hour’s pay for missing a rest period.  However, if the employee misses both mandated rest periods, he or she is still only entitled to only one hour of wages.

During these rest periods, the employer must relieve employees of all duties during rest breaks and relinquish any control over how the employee spends his or her break time.  In addition, it is the employee’s responsibility to take the rest period.  If the employee decides to work through the rest period, despite being allowed to take a break, the employer will not be responsible to pay the employee an hour’s wage.

If you have any further questions about missed meal and lunch periods, please contact an attorney at The Rinka Law Firm, PC at 310-556-9653.