- Are there any limits on what an employer can ask me during a job interview
- Can an employer ask me to take a drug test?
- Does my employer need a good reason to discipline or fire me?
- Is it illegal for my employer to discriminate against me?
- Do employment and labor laws apply to all workers?
- What are California’s requirements for wages, overtime pay, breaks, vacation, and sick time?
- Can my employer deduct anything from my paycheck?
- Am I entitled to financial assistance if I am injured on the job or become disabled?
- Does my employer have to accommodate my disability?
- What is sexual harassment?
- Am I entitled to time off to care for my new baby or tend to a serious medical condition?
- Is there anything I can do about unsafe working conditions?
- Can I join a union?
- What is unemployment insurance?
- Can my employer give me a bad reference?
- Are non-compete or arbitration agreements legal in California?
- Do I have the right to review my personnel file or payroll records?
- Can I continue my health care benefits after I leave my job?
1. Are there any limits on what an employer can ask me during a job interview?
Yes. Interview questions generally must relate to the skills and background necessary to do the job. For example, an employer normally cannot ask you your age, sexual orientation or religious affiliation. Nor can an interviewer normally ask whether you have or ever had a disability. The employer can, however, ask whether you are able to perform the essential functions of the job with or without a reasonable accommodation. (See #4).
In addition, employers usually cannot ask if you’ve ever been arrested if the arrest did not result in a conviction, plea, verdict or finding of guilt. Nor can they obtain your arrest record. If an employer does find out about a past arrest, he or she normally cannot use it in making employment decisions. This protection applies to job applicants and current employees seeking a promotion. (There are exceptions involving police officers and certain other workers.)
An employer can legally ask if you have been arrested and are still facing trial on criminal charges for that arrest. And employers can generally ask if you’ve ever been convicted of a crime. However, there are exceptions here as well. For example, an employer normally cannot ask about a conviction in which the records were sealed, or about any marijuana conviction that took place more than two years ago.
2. Can an employer ask me to take a drug test?
Yes, if you are a job applicant. On the other hand, if you are already an employee, your employer usually must have some legitimate or important interest in requiring drug testing, such as a reasonable suspicion that you are using drugs. If your job involves certain safety issues, such as a job driving a passenger bus, your employer has greater rights to drug test you, even without giving you advance notice.
3. Does my employer need a good reason to discipline or fire me?
Normally, no. There is no legal right to be treated “fairly” in the workplace. In California, as in almost all other states, the law permits employers to discipline (suspend or demote, for example) or fire their workers “at will” or, in other words, without needing or providing a reason. However, there are some significant exceptions to the rule. For example, your employer generally cannot discipline or fire you because of your age, race or certain other personal characteristics. (See #4). Such actions would be considered illegal discrimination. And, in most instances, you cannot be fired or disciplined for reporting or complaining to law enforcement, a government agency, or your own employer about your employer’s illegal activities or safety violations. Nor can you be retaliated against for missing work to serve as a juror. Such terminations would be considered violations of public policy.
Another exception to the at will rule might apply if you are fired from a job shortly after quitting another job or relocating based on the new employer’s job offer. Such an exception could apply if the new employer knew or should have known that the job offer wasn’t serious-or “real”-at the time it was made.
Or, you may have a contract stating that you can only be fired for just or good cause. If your job classification is covered by a union-employer contract (collective bargaining agreement), that contract probably contains a just cause provision. Contact your union representative for assistance.
Even without an oral or written contract, you may nevertheless have an implied contract that prohibits your employer from firing you without good cause. To determine whether an implied contract exists, a court would consider such factors as: the length of your employment, commendations and promotions, job performance evaluations, any assurances of continued employment (a promise of permanent job security, for example), and your employer’s employee handbooks and policies. There are no set criteria for establishing an implied contract; the court simply reviews all of the circumstances. Your employer must base any good cause termination on economics (such as a layoff) or poor job performance. If your contract was breached, you may have grounds for a lawsuit.
4. Is it illegal for my employer to discriminate against me?
Your employer normally cannot fire you or discriminate against you because of certain personal characteristics. The law specifically prohibits employers with five employees or more from treating employees unfairly because of their race, sex, color, national origin, age, religion, disability, marital status, medical condition, military status, sexual orientation or gender identity. For example, you probably can’t be fired simply because you are a woman. Nor can an employer discriminate against you because you are pregnant. In addition, there are some local laws that prohibit types of discrimination, such as discrimination against people who are overweight, that may not be covered by federal or state law.
In California, many of these employee protections appear in the California Fair Employment and Housing Act (FEHA). In federal law, they can be found in a variety of statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act and the Americans with Disabilities Act (ADA).
The state Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC) each investigate claims of job-related discrimination. If you have experienced job discrimination and you cannot resolve the situation with your employer, you may file a formal claim with either of these agencies. In fact, you cannot file a lawsuit without first filing a claim with one of these agencies. A claim must be filed with the DFEH within one year of the discriminatory event. A claim must be filed with the EEOC within 300 days of the discriminatory event. (It is only necessary to file with one of these agencies, not both.)
If your case is not resolved with the DFEH or EEOC, you should receive a Right to Sue letter. You must have or request such a letter before filing a lawsuit. In rare cases, the DFEH or EEOC will pursue claims regarding the discrimination against you. You may want to consult an attorney before filing a discrimination claim with the DFEH or EEOC. (See #19). This is because your initial statements to the DFEH or EEOC could limit what you are allowed to claim in any future lawsuit.
Finally, if you’ve avoided reporting illegal discrimination or filing a claim with the DFEH or EEOC for fear of retaliation, you should be aware that state and federal law prohibits employers from firing or otherwise retaliating against any employee who complains about discrimination. If you are claiming retaliation, be sure that it is specifically referenced in the Complaint or form that the agency prepares on your behalf.
5. Do employment and labor laws apply to all workers?
No. Whether an employment or labor law applies to a worker first depends on whether the worker is an employee or an independent contractor. Employment laws generally do not cover independent contractors. A variety of factors can determine whether a worker is an employee or an independent contractor. For example, a worker who controls his or her own work methods/means, buys his or her own materials and is paid by the job (rather than by the hour) is more likely to be an independent contractor. Under California law, it is what you actually do, not your job title, that determines your status as an employee or independent contractor-even if you agree in writing that you are one or the other. In some situations, an employer will designate someone as an independent contractor but then treat them as an employee — this is called misclassification and employers may be subject to certain penalties for misclassifying employees, especially if the improper designation was done intentionally. If you believe you have been misclassified, please contact our office.
In most instances, employment law protections also apply to undocumented workers. For example, employers are barred from paying undocumented workers less than the minimum wage. Employers are also barred from retaliating against their workers by reporting them to federal immigration authorities if the workers make a claim for unpaid wages.
A variety of federal and state laws and regulations provide legal protections for employees. A few of these laws include:
The above laws and their protections do not apply to all employers and employees. For example, certain laws may not apply if your employer has only a few employees, while other laws apply even if there is only one worker. Whether a specific employment law applies to you also depends on who your employer is. For example, government employees are covered by some laws but not by others.
If you feel that your employer is treating you illegally, you may want to ask an attorney if-and how-one or more of these laws would apply to your particular situation.
6. What are California’s requirements for wages, overtime pay, breaks, vacation, and sick time?
Generally, you must be paid at least the California minimum wage ($9 an hour as of July 1, 2014; $10 an hour as of July 1, 2016) for all work you perform for your employer, even if you worked “off the clock” or “volunteered,” worked at home or worked without approval. And if you are paid by commission or by the piece rather than by the hour, your employer usually must pay at least the equivalent of the minimum wage.
You must be paid overtime (one and a half times your usual wage for every hour or fraction of an hour you work over eight hours in a day or over 40 hours in one week, and double time for every hour you work over 12 hours in a day) unless you are exempt from overtime. Also, most workers are entitled to a paid 10-minute rest period every four hours and an unpaid 30-minute meal break every five hours. And your employer generally must maintain-and keep a daily record of your work hours for three years.
Contrary to common perception, state law does not require your employer to provide you with paid vacations or holidays. And if you are provided with vacation, your employer can establish policies for when you can-and cannot-use it. If provided, unused vacation time must be treated like wages, and must be included in your final paycheck when you leave a job, whether you are terminated or resign.
Sick time is handled differently as of July 1, 2015. An employee qualifies for paid sick leave by working for an employer on or after January 1, 2015, for at least 30 days within a year in California, including part-time, per diem, and temporary employees, and by satisfying a 90 day employment period (which works like a probationary period) before an employee can actually take any sick leave. Starting July 1, 2015, employees will earn at least one hour of paid leave for every 30 hours worked. That works out to a little more than eight days a year for someone who works full time. But employers can limit the amount of paid sick leave you can take in one year to 24 hours (three days).
There are some specific exceptions: Providers of publicly-funded In-Home Supportive Services (IHSS) are exempt. Employees covered by collective bargaining agreements with specified provisions are exempt, as are individuals employed by an air carrier as a flight deck or cabin crew member, if they receive compensated time off at least equivalent to the requirements of the new law.
If you need more time off than what is available to you by sick leave and/or vacation leave, you may be able to take an unpaid family medical leave. Both the California Family Rights Act (CFRA) and the federal Family Medical Leave Act (FMLA) provide this option under certain conditions. You also could qualify for up to six weeks of partially paid time off to care for a seriously ill child, spouse, parent or domestic partner, or to bond with a newborn, adopted or foster child under California’s Paid Family Care Leave Act. (See #11)
Finally, if you give more than 72 hours notice before quitting your job, you must receive all unpaid wages when you leave. If you are fired or laid off, you must be paid in full immediately at the time of termination. In either case, any delay could entitle you to a penalty payment.
Remember that these rules do not apply to everyone. For example, employers do not always have to pay the minimum wage to minors or trainees.
If you think that your employer is violating these laws and the violation does not involve an interpretation of a collective bargaining agreement (sometimes called a “union contract”), you can file a claim at a local Division of Labor Standards Enforcement (DLSE, also known as the “Labor Commissioner”) wage claims office. Or you can file an action in court. If you win your DLSE claim, your employer will have 10 days to pay it-or it will be entered as a court judgment.
7. Can my employer deduct anything from my paycheck?
In most cases, no. However, your employer could deduct funds for:
union dues or tax withholdings; any losses caused by your dishonesty, willful misconduct or gross negligence; or specific deductions that you previously gave written authorization to the employer to make.
In addition, wages could be deducted for food and lodging that, by pre-agreement, are part of your salary. And, under certain conditions, an employer can offset minimum wage payments by providing you with food and lodging. Your employer cannot, however, require you to pay for meals or housing through your job. And if you have to buy tools or a special uniform for your job, your employer usually has to reimburse you.
Finally, even if you do owe money to your employer, he or she cannot deduct the debt from your final paycheck in one lump sum. Instead, the employer could sue you in small claims court or superior court for reimbursement.
8. Am I entitled to financial assistance if I am injured on the job or become disabled?
Probably. If you are injured on the job while performing job duties in California, you are eligible for benefits under the Workers’ Compensation Insurance Program. If, however, you can no longer do your usual work because of an illness, injury or disabling condition (physical or mental) which is not directly related to your job, you may qualify for benefits from California State Disability Insurance (SDI), federal Social Security, or a disability insurance plan.
By law, all employers must carry workers’ compensation insurance. And for on-the-job injuries, it is usually your only avenue for assistance. You generally cannot sue your employer in civil court for injuries you suffer on the job unless your employer does not have workers’ compensation insurance. In such instances, you can sue your employer in civil court, and also seek temporary and permanent disability benefits from California’s Uninsured Employers Fund (UEF).
Employees injured on the job are generally entitled to some workers’ compensation benefits no matter how the injury occurred. For example, you could be injured by a piece of heavy machinery. Or you might be hurt in a car accident while traveling from one work-related meeting to another. Through this no-fault workers’ compensation system, an injured or disabled worker could be eligible for reasonable medical benefits, temporary and permanent disability payments, death benefits, a life pension, and vocational rehabilitation, depending on the nature of the injury and other factors.
Your benefits can be decreased if you were hurt in an accident caused by your own serious and willful misconduct. Or, if your employer knowingly put you in an unsafe situation that led to the injury, you could get a 50-percent increase in benefits. And if your employer refuses to pay your benefits, you might be entitled to penalty payments as well.
To apply for workers’ compensation benefits, simply notify your employer-in writing-as soon as possible, but no later than 30 days after the injury. Your employer has to supply you with a claim form, often called a DWC-1 form, within 24 hours of your employer’s learning of the injury. You must complete and file the claim form with your employer within one year of your injury. After you have completed the form, your employer must send it to its insurance carrier. (Keep in mind that there are deadlines for each step of this process.)
If your employer denies liability, file an Application for Adjudication of Claim with the Workers’ Compensation Appeals Board. Medical examinations and opinions are vital at this point. Ultimately, your case could go to trial before a Workers’ Compensation Appeals Board judge.
You may want to consider hiring a workers’ compensation attorney (See #19), especially if your injury is severely disabling or your employer is not treating you fairly. Workers’ compensation attorneys may not charge you up front for their services. Instead, the Workers’ Compensation Appeals Board judge will award your attorney approximately 12 percent of your permanent disability award.
Workers who are injured in a way unrelated to their jobs may be entitled to payments under the state’s SDI program, the federal Social Security program or a disability insurance policy. The SDI program covers a wide range of disabilities, including, for example, the inability to work due to acute alcoholism, a communicable disease or pregnancy.
You may be eligible for SDI benefits if you meet all of the following criteria:
You are unemployed and disabled.
You were working when you became disabled.
You are unable to do your usual work because of an illness or injury.
You worked in covered employment.
You have a physician’s certificate supporting your claim.
9. Does my employer have to accommodate my disability?
It depends on the size of your employer, the nature of your job and your disability. First of all, your employer must employ at least five people to be covered by disability laws. Next, you must be qualified to carry out the essential functions of your job and be able to do so with or without a reasonable accommodation. You must meet the employer’s training and production standards. And you cannot suffer from any condition that puts you or others in significant danger.
Under California law, your employer is required to accommodate your disability if you have a physical or mental impairment that limits one or more major life activities. Reasonable accommodation might involve changing your work schedule, modifying equipment, improving the accessibility of your work area or providing a reader to assist you, among other things.
For the law to require reasonable accommodation, however, the workplace change can’t be too difficult or costly relative to the employer’s size and resources. In other words, the employer may not be required to provide it because it would create an “undue hardship” on the business.
10. What is sexual harassment?
Sexual harassment is a form of illegal discrimination. In general, it is unwelcome sexual conduct on the part of a supervisor, co-worker or client. That conduct could be sexual comments, pressure for sexual favors, inappropriate touching or even a sexual assault. Or it could be one employee subjecting another to unwelcome sexual jokes or degrading posters of women or men.
The courts recognize two kinds of sexual harassment: quid pro quo and hostile work environment. If your boss denies you a promotion or other work-related benefit because you refuse his or her sexual demands, you may be a victim of quid pro quo harassment. In a hostile work environment case, the sexually based conduct around you must be unwelcome and so pervasive that it changes your work environment, even if you are not the actual target of the conduct.
If you experience sexual harassment at work, you should:
Document the occurrences. Keep any notes or e-mails received from the harasser or others.
Tell the harasser to stop his or her behavior. Or, write a letter demanding that the harassment come to an end. (Record the date of any conversations about the harassment and keep copies of any letters.)
Talk to a supervisor or human resources representative about the conduct.
Get a copy of your employer’s sexual harassment policy and follow the complaint procedure.
11. Am I entitled to time off to care for my new baby or tend to a serious medical condition?
In many cases, yes. Under the federal Family Medical Leave Act (FMLA), you could be entitled to take as much as 12 weeks of unpaid leave without risking your job security if you meet the following criteria:
You have a serious health condition, need to care for a family member with a serious medical condition, cannot work due to a pregnancy or childbirth-related condition, or have a new child in the family.
You have worked for the same employer for a total of one year and have worked at least 1,250 hours during the immediately preceding year.
You work for an employer who employs at least 50 workers within a 75-mile radius.
The California Family Rights Act (CFRA) offers similar employee rights. And if a pregnancy or childbirth-related condition renders you unable to work, you could be entitled to an additional four months of disability leave under California’s Pregnancy Disability Leave Act.
Before requesting a FMLA/CFRA leave, familiarize yourself with your legal rights and responsibilities. For example, such a leave can be used consecutively or, if medically necessary, intermittently (even a portion of a day at a time) throughout the year. And if you know in advance that you will need such a leave, you must give 30 days’ notice. (In emergencies, simply contact your employer as soon as possible.) In addition, you must provide medical certification if your employer asks for it. (The medical certification does not have to disclose a diagnosis or the specifics of the medical condition.) And while your job is generally secure during such a leave, your boss may not have to reinstate you if your position is eliminated during your absence. By law, your employer must post a notice and provide you with written information on your FMLA/CFRA rights.
Although FMLA and CFRA leaves are unpaid, California’s Paid Family Care Leave Act may also allow you to take up to six weeks of partially paid time off to care for a seriously ill child, spouse, parent or domestic partner, or to bond with a newborn, adopted or foster child. For more information on the rules for taking such paid leave, ask someone in your employer’s human resources department or contact California’s Employment Development Department.
12. Is there anything I can do about unsafe working conditions?
Yes. While some jobs are inherently more risky than others, you are entitled to a safe and healthy workplace. Under limited circumstances, you can even legally refuse to do any work that you believe would seriously endanger you or your co-workers-and your boss cannot punish you for doing so. You also have the right to ask-anonymously, if you choose-California Occupational Safety and Health (Cal/OSHA) inspectors to check your workplace for safety violations. In addition, most employers must:
Inform employees about any potential exposure to hazardous materials, about their possible health effects and about any equipment that might provide protection.
Warn employees (under Proposition 65) before exposing them to any chemicals known by the state to cause cancer or reproductive harm.
Provide employee access to the company’s health and safety records, including records of all job-related injuries and illnesses spanning back five years.
Maintain a safe and healthful working environment for employees.
Cal/OSHA can impose penalties and force employers to make changes. In extreme cases, dangerous working conditions can even lead to a company shutdown. To seek an inspection or file a complaint regarding your workplace, call or write to the nearest Cal/OSHA enforcement unit district office. In your complaint, describe the unsafe condition, how it threatens employees and if it has caused any work-related problems.
If you were fired or disciplined in any way for complaining about unsafe working conditions, you can file a complaint with the California Labor Commissioner within six months of the retaliation. You may also want to consult an attorney because you may have grounds for a lawsuit.
13. Can I join a union?
Yes, you normally have a legal right to do so.
Your union can bargain collectively with your employer for better employee wages and benefits, and better working conditions. And your employer cannot interfere with your participation in lawful union strikes or meetings with fellow employees.
Unions, too, must stay within certain legal bounds in their dealings with you. For example, union agents cannot threaten you with the loss of your job if you refuse to support union activities. Nor can they refuse to handle your job grievance for arbitrary reasons. Unions have a legal duty of fair representation to all of the workers in the union’s bargaining unit.
For more information on your rights as a union member, contact your union representative, your local labor council, the U.S. Department of Labor’s Office of Labor Management Standards (regarding internal union matters), or the National Labor Relations Board (or, if you are a California state or local government worker, the Public Employment Relations Board).
14. What is unemployment insurance?
It is short-term income available to you if you lose your job through no fault of your own. The Unemployment Insurance (UI) program-funded by California employers-provides benefits of up to $450 a week for up to 26 weeks in a given year. The state’s Employment Development Department (EDD) determines each applicant’s eligibility and distributes the payments.
To qualify, you must:
complete the EDD’s application and other requirements;
be unemployed or underemployed;
have earned sufficient wages during the past 18 months (according to EDD criteria);
have lost your job through no fault of your own; and
be available and able to work, and be looking for a job (although you could be disqualified if you refuse suitable work or if school attendance or child care conflicts affect your availability).
If you are an independent contractor, you will not qualify. Nor would you be eligible if you are not authorized to work in this country or if you quit your job to, for example, start your own business. (You might qualify, however, if you quit a job because of intolerable working conditions or because of a family emergency.)
To file for this assistance, contact the EDD through its Web site or by phone.
The EDD also provides some employment assistance. You might even qualify for the California Training Benefits Program, which would allow you to attend an approved job training program while collecting unemployment insurance.
15. Can my employer give me a bad reference?
Yes, if it is the truth or offered as an opinion. However, if your employer misrepresents your job performance to keep you from getting a new job, he or she has violated the Labor Code and could also face a lawsuit for defamation.
To prove defamation in a job reference, you would have to show that your employer intentionally harmed your reputation by making false statements.
Employers are not liable, however, for statements made in certain official proceedings or legally required background investigations.
16. Are non-compete or arbitration agreements legal in California?
Contrary to the law in many other states, non-compete agreements are usually invalid in California. In many cases, you cannot be penalized for accepting a job from your ex-employer’s competitor or for working with the same clients after leaving a job-even if your employer required you to sign an agreement not to do so.
However, you could still face restrictions. You can, for example, be barred from revealing confidential information or trade secrets from your former employer, or from using certain information, such as your previous employer’s confidential customer list, to solicit business.
Some employers ask their employees to sign arbitration agreements, which require their employees to bring their workplace claims to a neutral third-party arbitrator rather than to court. Such agreements are generally enforceable in California, even for discrimination claims. But to be valid, the agreement must provide for a “fair” arbitration procedure. For example, the employee should not have to pay more expenses to go to arbitration than to go to court. And the employee must be able to recover the same damages from an arbitration as the employee could win in court. Also, the employer may not unreasonably limit the arbitrator selection pool.
17. Do I have the right to review my personnel file or payroll records?
Yes. You can request to inspect your personnel file during your employment or after your employment has ended. If you ask to see your file, your employer must produce it within a reasonable time. In California, that is 30 days. In addition, state law requires that you be given a copy-at your request-of any job-related document bearing your signature. You may also request receipt of your payroll records. If you request your payroll records, your employer must produce them within 21 days.
If you wish to request your personnel file or payroll records, it is best to make such request in writing and to send your request in a way that can be tracked, such as by e-mail or, preferably, by certified U.S. Mail. Be sure to maintain copies of your request and proof of mailing and receipt. If your employer fails or refuses to provide your personnel file or payroll records within the time required by law, you may be entitled to recover monetary penalties.
Download a SAMPLE LETTER that you can send to your employer to request personnel file or payroll records. Be sure to KEEP A COPY for your records, including a copy of the certified mail receipt and tracking record.
18. Can I continue my health care benefits after I leave my job?
Yes. After leaving your job, you can generally continue your group health coverage for yourself and your family through the Federal Consolidated Omnibus Budget Reconciliation Act (COBRA) or, in some instances, its California equivalent, for up to 36 months, as long as you pay the employer’s cost of continuing your coverage. If you are fired or quit your job, your boss is required to notify your work health plan. The health plan must then notify you of your right to continued coverage.
This short-term health care option may also be available if you retire or reduce your work hours. And your spouse and children could qualify for coverage if you die, legally separate from your spouse or become eligible for Medicare, or if your child is no longer a “dependent.”
COBRA rights do not apply to all employees. For example, if you were working for the federal or state government, a religious facility (such as a church), or an employer who employs fewer than two workers, you would not have access to such coverage. If you believe that you have been subjected to a COBRA violation, you may file a claim with the Employee Benefits Security Administration of the U.S. Department of Labor.