Area of Expertise
Employment Law
In California, most nonexempt employees are entitled to be paid at overtime rates after working more than eight hours in one day or more than forty hours in one workweek.
Overtime Rates
If a nonexempt employee works more than eight hours in one day, he/she is entitled to be compensated at a rate of one and one-half times his/her normal hourly rate for the time worked after eight hours. Further, if a nonexempt employee works more than twelve hours in one day, he/she is entitled to be compensated at a rate of twice his/her normal hourly rate for the time worked after twelve hours.
If a nonexempt employee works seven days in one workweek, he/she is entitled to be paid at a rate of one and one-half times his/her normal hourly rate for the time worked on the seventh workday. Further, if a nonexempt employee works seven days in one workweek, he/she is entitled to be paid at a rate of twice his/her normal hourly rate for the time worked on the seventh workday after eight hours of work.
Contrary to what some people may think, an employer may require a nonexempt employee to work overtime. However, the employer must compensate the nonexempt employee with proper overtime wage rates. Further, an employer may not require a nonexempt employee to work all seven days in one workweek.
Misclassified Employees
Generally, when an employee is paid a salary, he/she is exempted from overtime laws, meaning he/she is not entitled to overtime pay regardless of the number of hours he/she works. As such, a salaried employee might work forty hours in one workweek, sixty hours in another workweek and still be paid the same amount of pay for each week. However, just because an employee is paid on a salary basis, as opposed to an hourly basis, does not mean the employee is not covered by applicable overtime laws. An employee may be classified as an exempt employee, when in fact, the employee is a non-exempt employee.
Exempt v. Nonexempt
Only certain employees are exempted from overtime requirements. Generally, the following three categories of employees are exempted from overtime requirements:
- Executive Exemption
Generally, an employee employed in this capacity is one:- whose duties and responsibilities involve the management of the business or a customarily recognized department or subdivision within that business; and
- who routinely directs the work of two or more other employees; and
- who is involved in the hiring and firing of employees; and
- who routinely exercises discretion and independent judgment; and
- who is primarily engaged in duties which meet the test of the exemption.
- Administrative Exemption
Generally, an employee employed in this capacity is one:- whose duties and responsibilities involve the performance of office or non-manual work directly related to management policies or general business operations of his/her
employer or his/her employer’s customers; and - who customarily and regularly exercises discretion and independent judgment; and
- who customarily and regularly exercises discretion and independent judgment.
- whose duties and responsibilities involve the performance of office or non-manual work directly related to management policies or general business operations of his/her
- Professional Exemption
Generally, an employee employed in this capacity is one:- who is licensed or certified by the state and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting OR who is primarily engaged in an occupation commonly recognized as a learned or artistic profession; and
- who customarily and regularly exercises discretion and independent judgment in
the performance of duties.
As such, although an employer may classify an employee as an exempt employee, if the employee does not fall into one of the three exempted categories, the employee may be misclassified. If an employee has been misclassified as an exempt employee and works more than eight hours in one day or more than forty hours in one workweek, the employee is entitled to paid for his/her time at overtime wage rates.
MEAL AND REST BREAKS
Most nonexempt employees are entitled to meal and rest breaks in California.
Meal Breaks
An employee is entitled to take an uninterrupted meal break of not less than thirty minutes if his/her shift is going to be more than five hours. However, an employee may waive his/her meal break, with the employer’s consent, provided that the employee is not going to work more than six hours in one work day. Further, an employee is entitled to take a second uninterrupted meal break of not less than thirty minutes if his/her shift is going to be more than ten hours. However, an employee may waive his/her second meal break, with the employer’s consent, provided that the employee is not going to work more than twelve hours in one work day.
Unlike a rest break, the time an employee takes for his/her meal break is not compensable. As such, an employer need not pay an employee for time that an employee is taking his/her meal break.
Although the meal break may be longer than thirty minutes, it may not be less than thirty minutes. Further, the employee must be relieved of all duty during his/her meal break. As such, an employer may not require an employee to do anything for the employer during the meal break. Furthermore, the employer may not require the employee to remain at the work site during the employee’s meal break.
Rest Breaks
Nonexempt employees are entitled to rest breaks at a rate of 10 minutes of rest for every four hours worked. The time an employee takes for a rest break is considered time worked. As such, an employer must not deduct the time an employee takes for a rest break from his/her total hours worked. An employee is not entitled to a rest break if the employee’s total daily work time is less than three and one-half hours. Unlike meal breaks, an employer may require an employee to remain at the work site during the rest break. However, the employee must still be relieved of all duty.
FMLA-CFRA
The Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) are laws that allow covered employees to take time off from work, without the risk of losing their job, for serious medical conditions or to care for certain family members with serious medical conditions.
Covered Employees
Generally, an employee is covered under FMLA or CFRA if all of the following apply:
The employee works for an employer who employs fifty or more individuals;
The employee has worked for the employer for more than one year; and
The employee has worked for the employer at least 1,250 hours in the preceding twelve months prior to taking the leave.
FMLA is a federal law, whereas CFRA is a state law. However, the language of both laws, basically mirror each other. Furthermore, the protections the laws give to covered employees are generally mutually exclusive of each other. As such, if an employee takes twelve weeks off in one year under FMLA, the employee may not take an additional twelve weeks off in the same year under CFRA or vice versa.
Sexual Harassment
Despite all of the advances of our society, sexual harassment still exists in the workplace. Fortunately, there are both state and federal laws that provide employees protection from this type of conduct.
What is sexual harassment?
Generally, there are two types of sexual harassment:
- Quid Pro Quo; and
- Hostile Work Environment.
Quid Pro Quo
Quid pro quo sexual harassment is the type of sexual harassment that most people think of when they think of sexual harassment. “Quid pro quo” is a Latin phrase meaning “this for that.” This type of sexual harassment involves a supervisor, manager, or executive conditioning an employment benefit, or the continuation of an employment benefit, upon a subordinate employee’s acceptance of a sexual proposition. The following are a few examples of how this type of sexual harassment may occur, where “S” is the supervisor and “E” is the subordinate employee:
S tells E that in order to get a pay raise, E must have sex with S.
S tells E that in order to get promoted, E must go on a date with S.
S tells E that in order for E to keep his/her employment, E must have sex with S.
Hostile Work Environment
Hostile work environment sexual harassment is conduct of a sexual nature that is so severe or persuasive that it creates a hostile work environment for the employees who have to endure it. Unlike quid pro quo sexual harassment, this type of harassment can occur regardless of the status of the employees involved. For example, a supervisor can harass a subordinate; an employee can harass a co-worker of equal rank; and a subordinate can even harass a supervisor.
Common conduct that may create a hostile work environment includes, but is not limited to the following:
- hugging
- kissing
- shoulder rubbing
- grabbing or groping of body parts
- commenting on the physical attributes of a person
- obscene gestures
- displaying pornographic material
- consistent staring/leering
If you feel you have been a victim of sexual harassment, you should consult an attorney immediately as the law limits the amount of time you have to file a claim.
Discrimination
Workplace discrimination occurs when an employer treats an employee or prospective employee differently than the employer would treat another. Contrary to what some people might believe, not all workplace discrimination is unlawful. For example, if an employer is paying a department head more money than it is paying to a line employee, the employer is discriminating between the department head and the line employee because the employer is paying them a different rate. However, this type of discrimination is not unlawful because the employer is paying them different rates based on their position. As such, not all workplace discrimination is unlawful.
However, when an employer treats employees or prospective employees differently based on certain protected characteristics, then the discrimination becomes unlawful. Protected characteristics include a person’s race, color, gender, national origin, religion, ancestry, marital status, pregnancy status, physical disability, mental disability, or age (if over 40 years old).
If you feel your employer has discriminated against you and that discrimination was based on a protected characteristic, you should consult an attorney immediately as the law limits the amount of time you have to file a claim.
Wrongful termination
California is an “at-will” employment state. What that means is that absent an agreement between the employer and employee that provides otherwise, an employer in California may terminate an employee for any reason, or even no reason, as long as it is not an unlawful reason. As such, unless an employer terminates an employee based on a protected characteristic of that employee, the termination will not be considered an unlawful termination. Protected characteristics include a person’s race, color, gender, national origin, religion, ancestry, marital status, pregnancy status, physical disability, mental disability, or age (if over 40 years old). Furthermore, there are a few other situations where an employee’s employment may be protected as well, such as under FMLA/CFRA.
Harassment
Although there are many forms of harassment, generally speaking, harassment is unwanted conduct that has no place in the workplace and is so severe or persuasive that is creates a hostile work environment. For example, continual yelling, name-calling, berating, jokes, pranks, or teasing or a pattern of such activity may constitute harassment. Although one to a few incidents of such activity will usually not constitute harassment, if the incident or incidents are severe enough, it may be deemed harassment.
The laws that govern harassment in the workplace are complex and numerous. As such, if you feel you have been the victim of harassment, you should contact an attorney immediately as the law limits the amount of time you have to file a claim.
Pregnancy disability leave
California offers several protections to employees who become pregnant. First, there is the California Pregnancy Disability Leave Law (“PDLL”). Second, there is additional protection afforded to employees who are covered by the Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).
The PDLL is found within the California Fair Employment and Housing Act and provides protection to pregnant employees whose employer employs five or more persons. The PDLL allows a covered employee, who is disabled by her pregnancy, to take up to four months of leave for such disability. Although most employees whose employer employs five or more persons are covered, there are a few exceptions such as nonprofit religious entities.
The PDLL does not require an employer to pay the employee during her leave, unless the employer has a policy that pays its employees for other forms of temporary disability leave. Further, although the employee may not be getting paid during her leave, her leave is not considered a break in service. As such, for purposes of determining an employee’s length of service for employee benefits, the employer may not deduct the time the employee was on leave. For example, if any employer has a policy that provides its employees with a certain amount of vacation weeks per year, and the number of vacation weeks an employee gets is based on the amount of time he/she has been employed, then for purposes of determining the employee’s length of service, the employer may not deduct any time that the employee was on leave under PDLL.
The PDLL is separate and distinct from the FMLA/CFRA. As such, if an employee is covered under both the PDLL and FMLA/CFRA, she may be entitled to more time off.
There are several provisions and procedures regarding the PDLL and FMLA/CFRA. As such, you should consult an attorney to advise you accordingly.
