LAWSUITS NEWS & LEGAL INFORMATION

California Labor Laws FAQ

I was hired "at will". Does that mean my boss can fire me without just cause?

Most employees in California are "at-will". According to the California labor law an employee can be suspended or fired at any time for any legal reason. There are exceptions to this law, however, including union workers who have a contract that prohibits firing a worker unless the employer has a good reason. As well, the California labor code protects workers from being fired or refused a job because of their race or sex or other types of illegal discrimination, or for whistleblowing, which means reporting an employer's illegal conduct to a government agency.

It is illegal to be terminated:

• for discrimination such as your race, sex, color, national origin, religion, gender, sexual orientation, gender identity (such as transgender status), age or disability (including pregnancy), medical condition, language (or accent), or marital status;
• in violation of a contract (such as a union agreement). There may be an implied contract if you have a reasonable expectation of continued employment (usually based on lengthy employment, promises of job security, continued promotions and positive performance evaluations);
• in retaliation for enforcing your own legal rights (such as filing a claim for unpaid wages);
• because you have reported your employer to a government agency or to the police

I was fired from my job without just cause. Can I collect unemployment insurance?

Unless you are terminated for misconduct--meaning serious or intentional disregard for your employer's interests, you can collect unemployment insurance. Repeated tardiness or unexcused absences from work may qualify as misconduct. Poor performance is not misconduct and should not disqualify you from unemployment benefits.

If you quit a job for a good reason, you can still collect unemployment insurance. The following circumstances are considered to be good cause to quit a job:

• Domestic reasons (leaving your job in order to maintain a marriage or family situation);
• You are offered a better job (if you are offered another job with better wages, benefits and potential, and then the job falls through);
• Health reasons (before quitting, you must inform your employer of the health problem and ask for a leave of absence or a less demanding job);
• Intolerable working conditions (such as safety, harassment, significant demotions or pay cuts).

To avoid being disqualified for unemployment insurance if you quit the job, you must also make all reasonable attempts to notify your employer and attempt to solve the problem before you quit.

I was fired and received my final paycheck one week later. Is that legal?

The California Labor Code states that your employer must pay all wages due to you immediately upon termination. If you quit, and gave your employer 72 hours of notice, you are entitled on your last day to all wages due. If you quit with less than 72 hours of notice, your wages are due within 72 hours after you notified your employer that you will be quitting.

If your employer refuses to pay you within the above time limits, a penalty can be enforced for each day that your wages are late, for up to 30 days. (Government employees are not covered by this rule.) Claims for late final pay are filed with the Labor Commissioner (California Department of Industrial Relations, Division of Labor Standards Enforcement).

I was fired before taking my vacation. Can I collect vacation pay?

Yes. When you are terminated or you quit a job, you are still entitled to your unused vacation pay, just like unpaid wages (California Labor Code Section 227.3). Your employer might not have allowed you to take a vacation (some employers require that you work for a certain amount of time beforehand), you may be earning vacation pay from your first day of work. Your employer, however, may impose a reasonable amount on the total amount of vacation that you can accrue over time.

How much time off can I take for medical or maternity leave?

Under family/medical leave laws, you are entitled to 12 weeks (used consecutively or intermittently) of unpaid leave from work to bond with a newborn baby or if you, your children, your parents, your spouse or your registered domestic partner have a serious health condition (including a serious health condition caused by domestic violence). During your leave, your employer must maintain your health benefits and must reinstate you to the same or equivalent position when you return. To qualify, you must meet the following criteria:

• Your employer must have 50 employees within a 75-mile radius of your worksite;
• You have worked at your job for at least one year;
• You have worked at least 1,250 hours during the previous 12 months;
• If the leave is for a serious health condition, the condition must last for more than three days and involve continuing treatment by a health care provider.

Regardless of whether they meet the above employer-size or employment-length rules, workers who participate in the State Disability Insurance (SDI) Program are entitled to a maximum of six weeks of partial pay each year while taking time off from work to bond with a newborn baby, newly adopted foster child, or to care for a seriously ill parent, child, spouse or registered domestic partner.

In addition, your employer may not fire you, force you to quit, or force you to take a leave because you are pregnant. Also, your employer may not take away seniority or accrued retirement benefits because of maternity leave; or force you to take a pregnancy leave if you are able to work.

Unemployment Insurance provides partial wage replacement to unemployed workers while they look for new work. You may be eligible for unemployment insurance benefits if you were laid-off, fired, or even if you voluntarily quit your most recent job.

If you have been initially denied unemployment insurance benefits, you have the right to appeal that decision.

I don't get a rest period. Is that legal?

California labor law requires that employees get rest breaks if they work over three and a half hours a day. These mandatory breaks must be in the middle of each work period and must be 10 minutes for every four hours worked or fraction thereof.

If an employer fails to provide an employee a rest period, the employee can recover one hour of pay for each work day that the rest period is not provided under the California meal period law.

After how many hours of work can I get a lunch break?

California law provides that employees must receive a 30 minute meal break if they work in excess of five hours. During this time, the employee must be relieved of all duties because it cannot be a working lunch. If an employer fails to give a proper meal break, the employee can recover one hour of pay at their regular rate of pay for each day they are not provided a proper meal break. An exempt employee, however, is not subject to this rule. Depending upon the nature of the job, in some cases an "on duty" meal break can be provided, as long as there is a a written agreement between the employer and employee.

I do a lot of paperwork for the company at home. Should I be paid for this work?

Employees must be paid their wages for all of their work time, which means any time spent engaged in work that benefits the employer in some way. This includes work at home, opening and closing duties, pre-shift and post-shift work, and anything that is considered "an integral and indispensable" part of the employee's principal work. For example, time spent washing a vehicle by a courier is "an integral and indispensable" part of the driver's work.

As well, if an employee is on-call and has restrictions on the use of free time, then that employee should be considered at work.

My boss is constantly harassing me but I am afraid of losing my job if I complain. What can I do?

There are federal, state and local laws that prohibit employers from harassing or treating workers unjustly because of race, sex, religion, national origin, age, disability, sexual orientation, gender identity, and pregnancy. Those laws also make it illegal for employers to retaliate against employees for making a workplace discrimination or harassment.

Do I have the right to see my personnel file?

Private employees, including former employees, have the right to inspect their personnel files to see what information their files contain about them and their job performance (California Labor Code Section 1198.5). Your employer must allow you to inspect your file within a reasonable amount of time after you ask to see it. Private employees also have the right to a photocopy of any document that has their signature (California Labor Code Section 432). You can ask to add your own documents to your personnel file if you disagree with some of the information in the file. Different laws provide similar rights to most government employees.

Is my former boss allowed to say bad things about me when contacted as a reference?

Your former employer is legally able to say bad things about you or your work performance as long as the employer's comments are truthful. Your former employer cannot knowingly give false information about your work performance to try to prevent you from getting a new job. As well, your former employer can give his opinion about your work performance (such as "he was unreliable") but cannot provide false factual statements (such as "he was stealing").

I'm a bartender and mistakenly didn't charge a customer for food at the bar. Can my boss deduct this charge from my paycheck?

It is illegal for an employer to deduct money from an employee's paycheck to offset an inadvertent error, cash shortage, or breakage (in other words, a loss caused by a simple mistake or accident). To legally make a deduction, the employer must show the error, cash shortage, or breakage was caused by the employee's dishonesty, willful misconduct or gross negligence.

We are required to wear aprons with the company logo. Do we have to pay for our uniforms?

In most occupations it is illegal for an employer to deduct the cost of a uniform or tools (exceptions include tools or equipment used in certain trades or crafts, and implements used by barbers, hair stylists and manicurists).

I'm hired as an independent contractor. Does that mean I am illegible for unemployment insurance and workers' compensation?

First, you might want to ask an attorney if your designation as an independent contractor is legal, rather than as an employee, which is determined by how you do your work and not by your job title. If you are an employee, you are eligible for unemployment insurance, workers' compensation, health/safety protection by Cal/OSHA, and protection against discrimination. You do not have these protections if you are an independent contractor.

What is the difference between an independent contractor and an employee?

If you answer "yes" to the following questions, you are likely an independent contractor. If you answer "no", you should probably be designated as an employee.

• Do you supply the materials, tools, and/or place of work?
• Does your occupation require a lot of skill? Is it usually done without supervision?
• Are you employed for a short amount of time?
• Are you paid by the job? (as opposed to payment by the hour, week, or year)
• Is your work outside the regular business that is paying you? (For example, a painter at a school is more likely to be an independent contractor than a teacher.)
• Is there an opportunity for profit or loss depending on your managerial skill?
• Do you believe you are creating an independent contractor relationship?

SOURCES:

California Department of Industrial Relations (www.cdir.gov)
California Labor & Workforce Development Agency (www.labor.ca.gov)