FAQ

In an at-will employment relationship, either the employer or employee can terminate the agreement at any time, for any legal reason, with or without cause. Illegal termination includes retaliation and any termination based on illegal discrimination. 

Illegal discrimination occurs when an employer treats an employee differently, or even less favorably, for illegal reasons. Those illegal reasons include:

• unfair treatment and harassment based on membership of a ‘protected class,’
• denial of a reasonable workplace change requested because of religion or disability,
• improper questions about medical information, or

any retaliation against an employee for exercising their rights in the workplace (e.g. submitting a harassment claim, reporting fraudulent activity, participating in an investigation, etc.). 

The protected categories under California law include:

• age (40 and over),
• ancestry and national origin,
• sex and gender,
• race and color,
• religion and creed,
• disability (mental and physical),
• sexual orientation, gender identity and expression,
• medical condition (including pregnancy and related medical conditions),
• genetic information,
• marital status, and

military or veteran status.

There are strict limits on what your employer can fire you for, even in an at-will employment agreement. Even if your employer had cause, you could have a claim for wrongful termination if any unlawful reason was a ‘substantial motivation’ for your termination. Those unlawful reasons include termination because of an employee’s:

• membership in a protected class,
• refusal to commit an unlawful act,
• exercise of their legal rights (i.e. filing a worker’s compensation claim, reporting wage theft, participating in an investigation, etc.),
• taking protected family time off, or

taking sick leave.

For every 4 hours you work, your employer must give you a 10-minute rest break. If you work more than 5 hours in a day, your employer must give you a 30-minute meal break during which you are free to leave the premises before the end of the 5^th hour. Each break must be entirely free of any work duties, and your employer must pay you for a full hour of work for every mandatory break you did not receive.

It is never legal for an employer to make a non-exempt employee work off the clock, even if they are salaried, and even if the employer doesn’t explicitly order them to. Employers are even prohibited from allowing employees to clock in for necessary before- or after-shift work, or simply assigning more tasks than is possible to complete in your compensated hours. If you can show that you performed any uncompensated work for an employer that stood idly by while they knew or should have known you were performing the work, you can successfully sue for back pay. Violations include requiring employees to work through their breaks or to do necessary paperwork or sidework outside of their shifts.

Any employee in California must be paid overtime, unless they are an ‘exempt’ employee. Non-exempt, regular employees – even if they don’t get paid hourly – must be paid:

            -150% of their regular compensation when they work more than 8 hours in a workday, or 40 hours in a workweek, and

            -200% of their regular compensation when they work more than 12 hours in a workday, or 8 hours on their seventh consecutive workday.

Generally, employees are only exempt from overtime if they earn at least $58,240 annually, and they spend most of their time at work doing intellectual, managerial, or creative tasks which require the exercise of discretion and independent judgment. A typical exempt employee might be a store manager, an engineer, or an outside sales representative. However, your title, listed job responsibilities, or even an agreement with an employer that you are ‘exempt’ does not mean that you are exempt from overtime requirements. Many employers misclassify employees who should be paid overtime and eligibility depends on the facts of your situation.

If an employer has more than five employees, they are required to accommodate physical or mental disabilities. An employer must provide reasonable accommodation to apply for jobs and to perform essential job functions, unless it would cause an undue hardship on the employer. Reasonable accommodations can include changing job duties or work schedules, providing mechanical aids, or reassignment to a vacant position.

It is unlawful for an employer to fail to engage in a timely, good faith, interactive process with an individual seeking accommodation. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation.

Sexual harassment is any negative, inappropriate, or unwanted conduct directed at a worker because of their sex or gender. California law protects against a broad range of behaviors that can constitute sexual harassment, ranging from conditioning employment benefits on tolerance of unwelcome sexual advances, to the creation of a sex-based hostile work environment.

Generally, successful sexual harassment cases require either:

• the exchange of a job-related benefit for submission to or toleration of unwelcome sexual advances. Merely hinting at a job benefit in exchange for sexual favors can constitute sexual harassment, or

a workplace with sex-based intimidation, ridicule, or insults that are severe or pervasive enough to create a hostile or abusive work environment.

No, sexual acts are NOT required for sexual harassment in the workplace; sexually harassing conduct need not be motivated by sexual desire at all. California sexual harassment law protects employees against any kind of harassment based on sex, gender, pregnancy, childbirth, or related medical conditions. 

Sexual harassment can be everything from sexually explicit discussions or content in the workplace to pervasive sexual favoritism. Any suggestion of an exchange of favors is sexual harassment.

A hostile work environment is essentially workplace bullying severe enough to create a legal cause of action. It is usually created by harassment, based on any protected characteristic, that is either severe or pervasive enough that an employee reasonably believes the work environment to be abusive.  What constitutes a hostile work environment depends on the social context of any given workplace, but factors that can determine whether a hostile environment has been created include:

• the frequency of the conduct;
• its severity;
• whether it is physically threatening or humiliating, or ‘merely’ offensive; and

whether it unreasonably interferes with an employee’s work performance.