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'At Will' Employment
 

Q. Can I Be Terminated For No Reason?​

A. Unfortunately, yes. California is an "at-will" state, meaning employers and employees agree either can walk away from the arrangement at any time, for any reason. This is beneficial for employees when they find a new, more promising job with a bump in pay, but not so beneficial when an employer decides it wants to trim its ranks to increase its bottom line, bring in someone with more experience or even bring in a family member without any experience.  In sum, California employers can terminate for any reason, except for an unlawful reason.

 

Q  When is it unlawful for an employer to terminate?

A. There are two general circumstances that are unlawful. The first is terminating an employee because he or she is part of a protected class. Protected classes are limited to Age, Race, Sex, National Origin, Gender, Religion, Disability, Pregnancy, Medical Condition, Marital Status, and Sexual Orientation. If an employer’s decision to terminate is substantially motivated by one of these factors, then termination is unlawful. The second reason employer may not terminate is where an employee is involved in protected activity. Protected activity includes reporting illegal conduct, health and safety issues and discussion of wages and other  benefits common to all employees. 

 

Q. Are office politics illegal?

A.  No. Although being subject to office politics can be stressful and even lead to one quitting his or her job this kind of activity is not unlawful. Favoritism, nepotism, and other types of unfairness in the workplace are simply not illegal unless the activity is substantially motivated by discriminatory animus toward a protected class or protected activity (e.g., whistleblowing about illegal activity, health & safety violations or wage violations).

 

Q.  My boss terminated me because a coworker lied about my performance. Is that illegal?

A.  No. Unless the activity is substantially motivated by bias toward a protected class or protected activity, this type of termination is not unlawful. It certainly would not be fair to be terminated because a co-worker lied about you, but the employer would not be on the hook for the termination whether or not it reasonably relied upon the lie. On the other hand, a person terminated in this way might have a defamation claim against the co-worker who lied, but as a practical matter it may not be worth bringing such a lawsuit. First, it probably would not get your job back. Second, unless the co-worker has the financial means to pay your damages a lawsuit may not accomplish much.

 

 

Discrimination

 

Q.  Is discrimination illegal?

A.  Yes. It is illegal for an employer to discriminate against an employee who is a member of a protected class. Protected classes include Age, Race, Sex, National Origin, Religion, Disability, Pregnancy, Medical Condition, Marital Status, Sexual Orientation. An employer who is substantially motivated to terminate you based on one or more of these factors is breaking the law.

 

Q.  What is disability discrimination?

A.  An employer may not make decisions adverse to an employee’s employment based on his or her disability. Under California law, a disability is a physical or mental impairment that limits one or more of a person's major life activities. Work is a major life activity. For example, if an employee who works in a warehouse lifting boxes breaks his or her arm, his or her employer must do its best to keep this employee working despite the injury. This might include granting a reasonable accommodation of light duty that requires less lifting and more time do activities they can perform such as filling out paperwork for a period of time. It might also include allowing this employee to take an extended medical leave until his or her arm is better. Each disability is different, so employers must work with employees on a case-by-case basis to try to keep employees working.

 

Q.  Does my employer have to create a new job for me if I’m too injured to perform my regular duties?

A. No. An employer must take reasonable steps to try to keep you working. The employee must cooperate with the employer to provide information about what they can and cannot do. This is known as engaging in an interactive process, and both the employer and employee are obligated to participate in a reasonable manner. However, an employer does not need to create a new job to keep you working, nor does an employer need to displace someone else in order to keep an injured person working.

 

Q.  My doctor put me on an extended medical leave. Does my employer have to take me back?

A.  It depends. Employers are required to try to keep employees working. This includes holding open an employee’s job if they are required to take an extended medical leave.  If, for example, an employee is out for surgery and recovery for two months and has provided the employer with doctor notes indicating an expected return to work date, then it’s very likely the law would require the employer to return this person to work. However, an employer need not hold job open indefinitely. If at any time it appears the employee may not return or has no reasonable anticipated return to work date, then an employer may be able to terminate legally. These are complicated issues and the law requires them to be dealt with on a case-by-case basis.

 

Q. Can my employer terminate me because of my age?

A.  It is illegal for an employer to terminate an employee 40 years of age or older merely because of their age. On the other hand, an employee terminated because he or she is considered too young or immature for a particular job is not protected. For example, an employee who 23 years of age who is terminated in favor of an older, more experienced employee has no recourse.

 

Q. How do I prove I was terminated because of my age?

A. This can be difficult. One piece of evidence the law allows a plaintiff to present in support of an age discrimination claim is wages if they are tied to years of service or seniority. In other words, if longtime employees over the age of 40 are making significantly more money than their under 40 counterparts because of years of service, this fact is admissible evidence. The law allows this because it does not want employers to replace older workers with younger workers simply to save money. However, if wages have no relation to age this evidence cannot be used.  Instead, one would have to rely on other evidence such as an employer’s comments about the person’s age.  There are no magic words that prove age discrimination. Sometimes, age bias is couched in references to the employee being slow or tired or inquires when the elderly employee intends to retire.  

 

Q.  Is pregnancy a disability?

A. Yes. Pregnancy is considered a disability under California law. An employer must accommodate a pregnancy disability.

 

Q.  I don’t qualify for FMLA. Might my disability leave still be protected?

A. Yes. If your employer has five or more employees, then your employer is required to reasonably accommodate your disability. One form of accommodation could be light duty. Another form of accommodation, particularly for an employee who is too injured to do any kind of work, would be to allow an extended medical leave of absence. This reasonable accommodation would be required unless it is determined the employee will be disabled indefinitely and has no reasonable return to work date. The definition of a reasonable return to work date may be different in each circumstance.

 

 

Protected Activity

 

Q.  Can my employer terminate me for reporting a safety violation to OSHA?

A.  No. Reporting a safety violation to an outside government agency is protected activity. An employer may not retaliate by terminating you, reducing your hours, or encouraging you to quit.

 

Q. My employer is involved in illegal activity. If I refuse to participate my employer will terminate me. Is that legal?

A. No. An employer may not terminate you for refusing to participate in illegal activity. However, you must have a reasonable belief the activity at issue violates the law.

 

Q.  I reported illegal activity within my company. Am I protected from termination?

A. Perhaps not. Whistleblowers are protected if their actions provide a public benefit.  In many cases, the courts do not define the ferreting out of problems within a company as providing a public benefit. For example, there is case law that an employee reporting embezzlement within his company is not protected because while the company benefitted the general public did not. 

 

Q. My boss forbids me and my coworkers from discussing our wages. Is this legal?

A. No. An employer may not prevent employees from sharing their wage information.

 

 

Wage and Hour Issues

 

Q. Can an employer require an employee to work overtime?

A. Yes, an employer may dictate the employee's work schedule and hours. Additionally, under most circumstances the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.

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Q.  Can my employer change my job title and duties without my permission? 

A.  Unfortunately, yes.  Unless you have a written contract specifying a title and duties and limiting the employer's ability to change your duties to meet the business needs, which is very rare in California, the employer can change your title, duties and schedule without warning. The employer is not required to pay you more even if you become responsible for duties regularly done by someone above your pay grade.  For example, even if you fill in for your manager your employer is not required to pay you more.

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Q.  Can an employee waive his or her right to overtime compensation?

A.  No, California law requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Consequently, such an agreement or "waiver" will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive. Labor Code Section 119411.

 

Q. What can I do if my employer doesn't pay me my overtime wages?

A. You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner's Office), or you can file a lawsuit in court against your employer in to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203.

 

Q. What can I do if my employer retaliates against me because I told him I was going to file a wage claim for unpaid overtime?

A. If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you file a wage claim or threaten to file a wage claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner's Office or you can file a lawsuit in court against your employer.

 

Q. Can an employer require an employee to work overtime?

A. Yes, an employer may dictate the employee's work schedule and hours. Additionally, under most circumstances the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.

 

Q. How do I calculate overtime pay? 

A.  In California, the general overtime provisions are that a nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek.

 

Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime at not less than:

 

• One and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and,
   

• Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

 

 

Labor Law

 

Q. What is labor law as distinguished from employment law?

A.  Labor and employment law both protect employees. Although there is overlap, labor law protects the rights of employees to organize and bargain collectively, whereas employment laws commonly protect the rights of individual employees.

 

Q.  How does labor law protect me?

A.  The National Labor Relations Act (“NLRA”) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. Employees need not be union members for their right to organize and bargain collectively to be protected.

 

Q.  Do I have to be in a union for labor law to protect me?

A.  No. The National Labor Relations Board (“NLRB”) protects employees engaged in what’s known as ”protected concerted activity” whether or not they are part of the union. The important thing is that the aggrieved employee is speaking up on behalf of others. This might include handing out leaflets in a parking lot while off duty, wearing a button advocating a particular employee cause or making statements regarding management on social media like Facebook. Again, the key ingredient is the employee must be advocating on behalf of of not only him or herself, but also his or her coworkers.

 

Q.  Am I protected if I try to organize everyone in my job classification to request a raise?

A.  Most likely, yes. If your efforts are conducted for the benefit of a group, then your activities should be protected. On the other hand, you complained to your boss you’re entitled to a raise a raise and simply refer to others in your department to exemplify people earning more than you, then your complaints will not be protected.

 

 

Unemployment Benefits

 

Q. I was terminated for doing a bad job at work. Am I entitled to unemployment benefits?

A. Yes. You are entitled to unemployment benefits if the reason for your termination was poor performance, even if due to negligence.

 

Q.  When can my employer legally withhold unemployment benefits?

A.  An employer may be allowed to withhold unemployment benefits from an employee who was terminated for purposely harming the employer. One can purposely harm an employer by lying, cheating or stealing.

 

Q.  My employer challenged my unemployment benefits. What do I do?

A.  The unemployment office will send you a notice stating your employer has challenged unemployment benefits and will inquire if you would like to appeal. In most cases, you can appeal by simply signing the paperwork and submitting it in a timely manner. Do not delay. A late appeal will not be heard. Appeals are handled by administrative judges. The process does not require you to be represented by a lawyer, but you may have a lawyer if you wish. At the appeals hearing, the judge will give the employee and the employer each chance to explain the termination. At issue is the most recent conduct, meaning an employer may not bring up old issues from the past. The judge will decide based on the most recent conduct if the employee purposely harm the company.

 

Q. What do you mean an employee “purposely harmed the company?”

A. Employers must pay unemployment benefits to a terminated employee, unless the employee purposely harmed the company. This means the employee intentionally, as opposed to negligently, caused harm to the business. For example, for a restaurant employee, negligence would include dropping a tray of expensive china and crystal by mistake, constantly mixing up customer orders or failing to develop the personality necessary to schmooze with diners. On the other hand, intentional or purposeful conduct might include purposely breaking expensive china or crystal in anger, purposely getting a customer’s order wrong because they were rude to you or providing for service to customers because you’re talking on your cell phone.
 

 

Legal Representation 

 

Q.  I am suing for discrimination. Am I the plaintiff or defendant?

A.  The complaining party is known as the plaintiff. The responding party is known as the defendant.  If you are suing your ex-employer for discrimination, then you are the plaintiff. Your ex-employer would be the defendant.

 

Q. I don’t have any money. How can I afford to hire an attorney to represent me in my wrongful termination lawsuit?

A.  Litigation is extremely expensive. Attorney work is complicated and time-consuming. Therefore, attorneys often charge a great deal of money. A large employer may be able to afford to pay an attorney many hundreds of dollars per hour. Individuals, on the other hand, often cannot afford to pay hundreds of dollars per hour for an attorney to litigate their case. Therefore, the law allows for attorneys to take on matters for little to no money up front with the promise of a percentage of fees paid from any recovery. This is called a contingency fee arrangement. The vast majority of individuals prosecuting employment claims are represented by attorneys under such an arrangement.

 

Q.  What does it mean for an attorney to work on contingency?

A.  An attorney working on contingency dedicates his or her own time to a case without promise of payment unless there is a recovery. Where there is a recovery, the attorney takes an agreed-upon percentage.

 

Q.  An attorney agreed to take my case on a contingency, but the percentage the attorney requires seems very high. Is that fair?

A.  That is for you to decide.  But, keep in mind, attorneys working on a contingency fee basis are taking on considerable risk that they will never be paid for their work. Although your case may result in a healthy financial recovery, every lawyer has cases that result in little to no financial recovery for a host of reasons outside of the control of the lawyer or client. If a contingency fee attorney is unable to make enough money from successful cases to make up for the unsuccessful ones, then the contingency fee attorney must shut his or her doors, thus cutting off the most common means individuals have to retain an attorney.

 

Q.  What are costs?

A.  “Costs” refers to the money spent to facilitate the administration of a lawsuit. Costs include, but are not limited to, money paid to the court to file a lawsuit and supporting paperwork, money paid to a court reporter to conduct a deposition, money paid to an expert to provide his or her opinion, and money paid for jury fees during trial.

 

Q.  Does the defendant have to pay my attorney’s fees?

A.  As a general rule, no. Each side pays its own attorney’s fees. However, many employment laws that protect employees from wrongful termination, discrimination, and wage issues require a defendant to pay a plaintiff his or her attorney’s fees if they prevail at trial
 

 

Arbitration

 

Q.  What is arbitration?

A.  Arbitration is an alternative to a trial in civil court.  Arbitration trials are private hearings, usually overseen by retired judges or experienced attorneys who specialize in the area of law at issue in the case. 

 

Q.  Are arbitration trials held before juries?

A.  No. Arbitrations are argued before private arbiters. Sometimes these arbiters are retired judges. Sometimes the parties agree to have two or three arbiters here the case, but the jury system you are familiar with in civil court is not part of the process.  Oftentimes, the party bringing the lawsuit finds it unfair they are unable to present their case to a jury of their peers. Oftentimes, this concern is well-founded.

 

Q.  Are arbitration trials common in employment matters?

A.  Yes, arbitration trials are very common in employment matters. Many employers, particularly large national employers, require new employees to sign agreements whereby they waive their right to a trial before a jury of their peers.

 

Q.  Is it more difficult to win an arbitration trial then a trial by jury in civil court?

A.  Obviously, each and every case and arbitration is different, so it would be impossible to pronounce civil jury trials as “better” for a plaintiff than an arbitration trial. However, most employment attorneys would agree a civil trial before a jury of one’s peers is the preferred setting for an employment lawsuit. If for no other reason, the jury setting allows for a collective decision, whereas an arbitrator, even one with the best of intentions, may be swayed by personal biases or have a misunderstanding of the facts of a case that goes untested by other triers of fact.

 

 

More About Taylor Labor Law, P.C.

 

Q.  What kind of cases do you handle?

A.  Taylor Labor Law, P.C. handles employment and labor matters. Employment matters include discrimination, harassment, retaliation and/or wrongful termination cases. The underlying illegal activity may be discrimination based on disability, race, age, gender, sex or religion. It also includes employees retaliated against for whistleblowing over illegal activity or unsafe working conditions. Labor matters include employees terminated for engaging in what’s known as ”protected concerted activity.” This includes employees terminated or demoted for speaking up on behalf coworkers.

 

Q.  Are you selective in choosing your cases?

A.  Extremely. Taylor Labor Law, P.C. is a very busy practice. We are approached daily by prospective new clients, each deserving of stellar legal representation. We take the cases we believe we can have the greatest impact on. Unfortunately, this means we regularly turn down deserving individuals.

 

Q. How much do you charge?

A. Our firm represents employees on a contingency fee basis. This means we do not require clients to pay money for our services up front. Rather, we agree to be paid contingent upon the outcome of the matter. 

 

Q. Since I'm not paying money up front, how can I be sure you will work hard for me?

A. As a result of the contingency fee arrangement, our interests are perfectly aligned with those of our clients. The firm has every incentive to obtain the best results possible for our clients because the firm’s compensation is tied directly to the client’s compensation.

 

Q.  How much money do I have to pay you to get started on my case?

A.  None. Taylor Labor Law, P.C. is a contingency fee firm representing aggrieved employees on a contingency basis.

 

 

Will You Represent Me?

 

Q.  What are you looking for when you consider a new case? 

A.  First and foremost, we consider the client. When we take on a case, we are committing to working closely with the client for an extended period of time. It is a cooperative relationship, and our firm will dedicate considerable time and financial resources to it. We look to see if the prospective client is interested in, and capable of, committing to the process.  

 

Q.  What is my role in the lawsuit?

A.  First and foremost, we look to the client to tell the truth, the whole truth, and nothing but the truth. Sometimes clients fear mentioning certain facts he or she believes are “bad” and could cause the firm to lose interest it the case. In most instances, these “bad” facts are irrelevant and are not of interest to us or to Defendant. And, if there truly is a negative fact that could affect the case, then we should factor it into our evaluation of your case. Second, it is important you provide to us as much information as possible at the beginning of the case. This includes being as inclusive as possible with facts and documents. This also includes providing a timeline of events so everyone is clear on what occurred. Third and finally, we ask that you remain readily available for questions. The majority of your “work” will be done up front by providing information for discovery and by participating in a deposition. After your deposition, you will find there is not much for you to do until trial, but we ask that you remain available by email, text and telephone to answer questions that will undoubtedly arise.

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Q. Who would represent me at Taylor Labor Law, P.C.?

A.  Taylor Labor Law, P.C. attorneys Christopher W. Taylor, Parham Barkhordar, Taylor White and paralegal Maria Salgado will be your primary contacts and be the team members working on your case day to day.