Arias Sanguinetti Wang & Torrijos litigates on behalf of employees and employers in employment areas such as:
Our attorneys also handle such aspects of employment law as: workers compensation workplace safety workplace whistle-blower rights. Our law firm’s practical approach in this area of the law also has allowed us to promptly and effectively resolve numerous matters without proceeding to litigation.
Employment law gives employees rights that employers often overlook. For example, depending on their situation, employees may be eligible for: overtime compensation if misclassified as administrative, executive or professional staff reimbursement for work-relates related expenses such as work uniforms, company cell phones, and gas mileage compensation for missed meal and rest breaks These rights are often spelled out in the employee handbook as well as by law.
Arias Sanguinetti Wang & Torrijos represents employees whose legal rights have been violated. Our employment law attorneys also assist employers in developing personnel policies and practices to assure compliance with the laws regulating the employment relationship. We also provide training and guidance to employers on managing the workforce to minimize potential legal liabilities.
Our law firm provides employers with access to our expert legal staff. We stand by as a ready reference to guide employers as a supplement for the employer’s own human resources staff.
A key area of employment law litigation is wrongful discharge, also known as wrongful termination. If you are an employee and believe you were terminated illegally, you may have a case against your employer. Or if you are an employer who has recently terminated an employee, you may need legal advice in case the employee files a wrongful termination action.
In California, a wrongful discharge case usually comes under one of the following categories:
- Violation of employment contract
- Discrimination cases
- Whistleblower/Public policy cases
Discrimination in the workplace can include creating what is known as a “hostile work environment,” where it becomes extremely uncomfortable for the employee to continue working.
Our employment lawyers can help advise you of your rights in such cases.
Gender Discrimination Law
Gender discrimination in the workplace is prohibited by federal law under Title VII of the Civil Rights Act of 1964, as well as state law under the California Fair Employment and Housing Act (FEHA) and the California Constitution. Gender discrimination is prohibited in any term, condition, or privilege of employment. This means that an employer cannot discriminate against an employee because of his or her sex in such employment practices as:
- Hours of employment
- Conditions of employment
Types of Gender Discrimination
Gender discrimination can take several forms. Some examples include the following:
- Sexual harassment can be of several types. It includes:
- an offer by an employer of employment benefit in exchange for sexual favors
- unwanted sexual advances or physical contact
- making sexual gestures or comments
- displaying offensive material
- hostile treatment of an employee because of his or her gender
- Wage discrimination occurs when an employer pays an employee of one sex less than an employee of the other sex for the same work. There are some exceptions where the difference in pay is reasonable, such as education or experience levels, or if a merit or seniority system has been in place.
- Pregnancy discrimination is any adverse action by an employer against a female employee because of her pregnancy. Employers are required to provide a pregnant employee with reasonable work accommodations, such as restricted lifting, as well as maternity leave. Employers are also prohibited from discriminating against breastfeeding mothers and must provide certain accommodations.
- Gender stereotyping involves taking any adverse employment action against an employee whom the employer thinks is not “acting like” their sex or is not conforming to a “gender norm.” Transgender employees are also protected by federal and California law.
Hostile Work Environment
A hostile work environment exists when an employee is repeatedly harassed by one or more co-workers or supervisors in the workplace. Harassment can also come from someone who is not an employee, such as a contractor, vendor, or a guest. Most cases involve sexual harassment, however a hostile work environment can also be created when the harassment is based on race, ethnicity, age, religion, gender, disability, or any other class protected by discrimination laws. Common types of harassment can include any of the following:
- Discriminatory actions or remarks concerning the employee’s race, ethnicity, age, gender, sexual orientation, religion, or disability (physical or mental)
- sexual harassment
- Harassment from a supervisor in retaliation for a certain action of the employee, such as the employee reporting unsafe or illegal employer conduct under California whistleblower laws
- Harassment or hostility that threatens the employee’s physical safety
Establishing a Hostile Work Environment
A hostile work environment can only be established when the harassing behavior is sufficiently “severe or pervasive” to affect the targeted employee’s work performance. Whether the conduct is sufficiently severe or pervasive is determined from all the circumstances. The employee must show that that the harassing conduct would have interfered with a reasonable employee’s work performance and would have seriously affected his or her psychological well-being. Actions or comments that are occasional, isolated, or trivial do not constitute a hostile work environment. In addition, ordinary differences between people, rudeness, or other ordinary offensive behavior are usually insufficient to create a hostile work environment.
Examples of Harassing Conduct
Usually, a single incident of harassing behavior does not constitute a hostile working environment. However if the harassing conduct is ongoing and severe enough to make working conditions intolerable, then a legal claim can be established. Repeated conduct that can make a hostile work environment may include any of the following examples:
- Sexual or lewd jokes
- Display of pornographic pictures or images
- Sending or forwarding offensive or sexual e-mails or notes
- Making improper sexual gestures or staring at someone in a sexually suggestive manner
- Touching an employee in a way that is inappropriate or uncomfortable to the employee
- Offensive comments about a person’s looks or body
- Racially derogatory comments
- Disparaging remarks about a person’s religion, age, gender, ethnicity, sexual orientation, etc.
- Derogatory remarks about an employee’s physical or mental disabilities
Meal And Rest Breaks In California
All non-exempt California employees are entitled to regular meal and rest breaks during work periods. Unfortunately, many employers deny their workers these breaks and are in violation of federal and state law. If you believe that your right to meal and rest breaks has been violated by your current or former employer, contact the experienced employment law attorneys at Arias Sanguinetti Wang & Torrijos. We will determine whether or not your employer is in compliance with the law and help you seek redress for any wrongs that have been committed against you. If your co-workers have also been denied these breaks, a employment law suit may be appropriate.
Who Does The Law Apply To?
Under state law, all non-exempt employees are entitled to meal and rest breaks. Federal law also establishes mandatory break periods for employees. However, California law is more favorable to employees than federal law and the employer must comply with the law that provides the most protection to workers. An employee is usually considered non-exempt unless he or she hold a management, administrative, or professional position. A determination of exempt or non-exempt status is based on the employee’s job duties, not an employee’s job title or how he or she is paid. Even salaried employees can be non-exempt.
Contact our employment law attorneys for a free consultation.
California Break Periods
State law provides the following break periods for all non-exempt employees:
- A 10 minute paid break period for every 4 hours of work. If feasible, each break period should be scheduled in the middle of the work period. The employee is not required to take the break period.
- A rest period is not required if the employee’s total daily work time is less than 3 1/2 hours.
- If a break period is not provided for the employee, the employer is penalized one hour of pay for every day a break is denied.
- Mothers with infants are entitled to a reasonable amount of break time to express breast milk. Employers must make reasonable efforts to provide the employee with a room or other location (other than a toilet stall) to express milk in private. A private location does not have to be provided if doing so would seriously disrupt the employer’s operations.
California Meal Periods
State law provides the following meal periods for all non-exempt employees:
- Not less than 30 minutes must be provided to every employee who works more than 5 hours. During this time, the employee is to be relieved of all duties and is free to leave the employer’s premises.
- If the employee is not relieved of all duty during a 30 minute period, the employee is considered “on-duty” and is counted as time worked. On-duty breaks are only allowed when the nature of the work prevents the employee from being relieved of all job duties (for example an armored car guard). Both parties must agree to such breaks. Over time pay is required if the employee ends up working over 40 hours per week because of the added break time.
- A second break period of not less than 30 minutes must be provided if the employee works more than 10 hours.
- The right to a meal period cannot be waived. However, if an employee works 6 hours or less, the required break period may be waived if the employee and employer agree. If an employee works 12 hours or less and takes the first period, the second period may be waived by mutual consent.
If you are or were an expectant mother and have been discriminated against in the workplace due to your pregnancy, your employer may be liable under federal and California law. Both Title IV of the Civil Rights Act of 1964 (federal law) and the California Fair Employment and Housing Act (FEHA) prohibit unfair treatment of a pregnant employee. Under these laws, a pregnant employee must be treated the same in all employment-related matters as any other employee with similar abilities and skills. Employers are also required to reasonably accommodate a pregnant employee as they would an employee who is physically disabled, such as adjusting work duties or schedules. If you believe that you have been unfairly treated by an employer because you are pregnant, you should contact an employment law attorney as soon as possible.
Illegal Employer Actions in California
Under California law, an employer is prohibited from discriminating against an employee on the basis of pregnancy, childbirth, or related medical conditions. It is illegal for an employer to take any of the following actions against an employee based on pregnancy:
- Discrimination against a pregnant employee in the terms, conditions, or privileges of employment
- Denial of the same benefits provided to other employees
- Denial of up to four months of maternity leave
- Refusal to transfer a pregnant employee to a less strenuous or hazardous position if the transfer can be done reasonably
- Refusal to provide a pregnant employee with reasonable accommodations if requested
California Pregnant Employee Rights
A pregnant employee has several special rights under California law. These include the following:
- Reasonable accommodations: If a pregnant employee makes reasonable requests for special accommodations, such as weight-lifting restrictions or re-assignment away from toxic materials dangerous to a fetus, then the employer must comply if the accommodations do not entail an undue hardship for the employer. Employers must also provide break time and a private area for mothers to breastfeed their infant in the workplace.
- Maternity leave: Employers must allow an employee up to four months of leave for medical complications related to pregnancy and childbirth. The leave does not have to be taken all at once and may include periods before and after birth. An employer may require the employee to use accumulated sick leave during this period, but accrued vacation time need not be used. Under the California Family Rights Act (CFRA), an employee may take up to an additional 12 weeks of leave after childbirth. The law also allows fathers as well as mothers to take this leave in order to take care of and bond with newborn children.
- Wages: Under California’s FEHA, pregnant employees are entitled to disability pay when taking leave for medical complications related to pregnancy and childbirth. Partial compensation is also available for parents who take time off from work under the State Disability Insurance Law.
- Return to work: After taking a childbirth-related disability leave, an employee is entitled to return to the same job within a certain amount of time. If the job no longer exists, the employer must place the employee in a job with similar wages, location, duties, and other conditions of work.
Sexual harassment consists of unwanted sexual contact by a superior, supervisor, or co-worker. Both male and female employees can be victims of sexual harassment and a victim can be harassed by a member of the same sex (even if the neither the harasser nor the victim are homosexual). Sexual harassment generally consists of two types:
- Quid pro quo harassment: This occurs when employment is conditioned on the employee’s submission to unwelcome sexual advances (i.e. offering employment benefits in exchange for sexual favors). For example, an employee may be threatened with termination if he or she refuses a sexual advance.
- Unwelcome sexual conduct: This consists of conduct of a sexual nature that is severe or pervasive enough to create an abusive environment for the employee. For example, this may include visual conduct such as displaying sexual pictures, verbal conduct such as making sexual comments, and physical conduct such as inappropriate touching of someone.
Sexual harassment is a violation of California’s Fair Employment and Housing Act (FEHA). Under this law, harassment based on sex, gender, pregnancy, and childbirth or related medical conditions, is considered sexual harassment. Unwelcome sexual advances and verbal or physical conduct of a sexual nature is sexual harassment if the conduct affects the victim’s employment, unreasonably interferes with work performance, or creates an abusive, intimidating, hostile or offensive work environment. Examples of illegal sexual harassment may include any of the following:
- Offering employment benefits in exchange for sexual favors (or threats of termination, demotion, etc. for refusal)
- Unwanted sexual advances
- Visual conduct such as sexual gestures, leering or displaying pornographic pictures
- Verbal conduct such as derogatory comments, slurs and jokes
- Verbal abuse of a sexual nature
- Verbal comments about a person body
- Sexually degrading words used to describe a person
- Sexually suggestive or obscene letters, e-mails or notes
- Unwanted physical contact such as touching or impeding a person movements
- Harassment based on gender, such as mistreatment of a person because she is female
California Wage and Hour Laws
Wage and hour laws are governed by the California Labor Code and the Federal Fair Labor Standards Act. The most common areas of employer violations include the following:
- Overtime: Overtime pay laws protect employees from being forced to work extensive hours without additional compensation. Most employees are entitled to overtime compensation of one and one-half times their regularly hourly pay rate for work in excess of eight hours per day or 40 hours per week. Workers who have been denied overtime pay can recover the unpaid wages due plus attorney’s fees and costs. Under federal law, an employee may also be able to recover liquidated damages as well.
- Minimum wage: Some employers improperly reclassify employees in order to pay them less than a minimum wage. Nearly all workers in California must be paid at least the minimum wage of $8.00 per hour.
- Meal and rest periods: California employees are entitled to take regular meal and rest breaks during the work period. Generally, an employee who works a shift of at least 5 hours must receive a meal period of at least 30 minutes (10 hours or more includes a second 30 minute period). In addition to meals, an employee is entitled to rest breaks of 10 minutes for every 4 hours worked.
California Prevailing Wage
Under California’s Labor Code, employers who are awarded public work contracts from state or municipal governments are required to pay their employees a “prevailing wage,” which is determined by the Department of Industrial Relations. Often such an employer will intentionally misclassify employees as independent contractors to avoid paying the prevailing wage. Employers who fail to pay their employees the prevailing wage must not only compensate them for any underpayment but are also subject to penalties and fines.
Types of Cases that We Handle
At Arias Sanguinetti Wang & Torrijos, we represent employees whose rights have been violated in the workplace. We handle many types of wage and hour claims, including the following:
- Failure to pay overtime for any hours worked over 8 hours in a single day or 40 hours per week
- Improper classification of workers as salaried and exempt from overtime wage requirements
- Failure to provide adequate meal and rest breaks
- Failure to pay the minimum wage
- Failure to pay employees for off the clock work before and after a shift
- Misclassification of employees as independent contractors
- Altering time cards
- Failure to pay commissions
- Failure to pay vacation pay
- Failure to give 60 days notice of a mass layoff
- Final paycheck violations
Unless an employee has a written employment contract, most workers in California are under a system known as “at will employment,” which means, among other things, that employers can terminate employees at will without any explanation. In other words, an employee can be fired for any reason or no reason at all, with or without cause (just as an employee can quit for any or no reason at any time). However, there are very specific exceptions to the “employment at will” rules and an employee can sue for wrongful termination under any of these exceptions:
- Violations of existing employment contracts
- Fraud or misrepresentation
- “Implied contracts” (such as employment related promises made in employee handbooks)
- Retaliatory discharge (such as whistleblowing claims)
- Violations of public policy (such as discrimination)
Another form of wrongful termination is called “constructive discharge.” This happens when the employee is not fired but quits because the work conditions are so horrible that he or she has been effectively forced out. Under California law, if the conditions of employment are so severe that a reasonable person could not consider working any longer in that environment, then the person may quit and sue for damages for lost wages. However, employees can not merely quit and sue after an isolated incidence of harassment or because work conditions are less than perfect. Employees should document their attempts to remedy the situation with their employer, and only consider quitting and suing for damages if things do not improve and the work environment becomes intolerable.
Examples Of Wrongful Termination
Some examples of wrongful termination are listed below. Under California law, it is illegal for an employer to fire an employee for any of the following reasons:
- Race, sex, national origin, disability, sexual orientation, religion, age, or some other protected classification
- Reporting unsafe work conditions
- Retaliation for reporting any suspected illegal activity to a government agency (such as a whistleblower’s claim)
- Opposing an illegal activity by the employer
- Demanding legally required rest or lunch breaks
- Requesting an accommodation for a disability
- Taking pregnancy leave, family leave, or medical leave
- Refusing to work in an unsafe area
- Taking time to vote
- Political affiliation
- Marital or family status
- Serving on jury duty
- Refusing to sign an unlawful non-competition agreement
- Reporting sexual harassment
- Filing a workers’ compensation claim
- Taking advantage of any employer provided benefit
- Supporting a co-worker’s claim of sexual harassment or discrimination
Contact an Experienced Employment Law Attorney
If you are an employee whose rights may have been violated by an employer, or an employer seeking legal advice about how to comply with employment law, contact our skilled employment law attorneys today.