Category: Blog

Freedom of expression in the workplace

Many people trust the misleading phrase: “It’s a free country, I can say what I want.” That’s not entirely true, especially when it comes to freedom of expression in the workplace.

The First Amendment protects government employees from adverse employment action for exercising their free speech rights. However, the First Amendment does not establish or support a public policy that prohibits private employers from firing their employees for exercising their First Amendment rights.

This means that an employee cannot sue a private employer for a violation of the First Amendment because the First Amendment only restricts the government. There must be a legal basis to file a claim for wrongful termination based on freedom of expression.

An example of freedom of expression protected by law is when an employee complains about working conditions. If there is a condition at work that is dangerous, the employee has the right to make complaints about the work environment.

Political activity

There are some protections provided by the law concerning political activity. It is illegal for an employer to prevent employees from participating in politics (actively or expressing their opinions) or running for public office. If an employer attempts to coerce or influence employees by threatening dismissal or loss of employment if they continue or refrain from following a particular political activity course, that is also unlawful.

However, if a company has a neutral dress code that states that employees cannot wear clothing with personal or political messages, then the employee was justifiably fired for a dress code violation, regardless of the fact that your face mask, polo shirt, etc. included a political statement.

Activity outside of work

Employers shouldn’t be able to dictate what an employee does outside of work. Labor Code § 98.6 prohibits employers from firing, discriminating, retaliating, or taking adverse action against an employee for “legal conduct that occurs during non-working hours outside of the employer’s premises.”

Signs you are facing pregnancy discrimination in the workplace

Under the Civil Rights Act of 1964, employers cannot discriminate against employees based on their pregnancy status. In addition, according to the Family Medical Leave Act, employees who have been with their company for more than a year are entitled to at least 12 weeks of unpaid leave surrounding pregnancy and birth. 

Once upon a time, employers would use pregnancy as a reason to avoid hiring a woman or as grounds for termination. Back then, discrimination was blatant. It was not uncommon for a woman to be asked in an interview whether or not she planned to have children and base hiring decisions around that. Today, pregnancy discrimination is much more subtle, but it is very much alive. 

Here are a few examples of what modern pregnancy discrimination can look like:

• You are pressured to leave a job based on your pregnancy status. This type of pressure can take many forms, but it is often done through guilt. If you hear something like, “I just don’t know how we are going to complete this work without you here… it would be so much easier to have someone on full-time who can stay in the position. We have some fantastic candidates applying for your position…”, that can be interpreted as pressuring you to quit your job.
• You are not provided with reasonable accommodations. If your job requires you to lift heavy objects, your employer needs to find another solution for you during your pregnancy. Shifting responsibilities and having others lift for you is vital for both your health and the health of your baby. If they insist that you continue to lift heavy objects at your own risk, that can be considered discrimination.
• Your job is not held for you during maternity leave. If you are replaced while you are out for 12 weeks recovering from birth, that can be considered discrimination under the law. 
• You are given negative reviews saying that your pregnancy or your newborn are distracting you from completing your work duties. If this is said to you while you are maintaining your normal work output level, it could be a discriminatory practice, and your employer could be laying the groundwork to let you go.

If you believe you are facing pregnancy discrimination at work, contact Para Los Trabajadores today.

What can be included in a settlement agreement?

A settlement agreement is made when a dispute is resolved between you and your company. There are certain things that your company can and cannot include. Be careful.

What your employer can include:

# 1 Waiver of Unknown Claims: Under California Civil Code section 1542, the company may ask you to waive the right to submit claims that you are not aware of at the time you settle.

# 2 Resignation: Your employer may include a requirement that you resign from your job.

# 3 Confidentiality. You can also agree not to disclose the amount of the payment you will receive and confidentiality regarding the details of the claims presented. (Except for claims of sexual harassment. Under California Code of Civil Procedure Section 1001, confidentiality cannot extend to the factual basis of the claim)

What your employer may NOT include:

# 1 Waiver of specific claims. There are specific claims that you cannot be forced to waive under the California Labor Code. They are related to wages and benefits and include:

• Outstanding unpaid wages
• Business expense reimbursement
• Unemployment insurance
• COBRA
• Compensation insurance

# 2 Prohibition to participate in administrative claims. Also, a settlement agreement cannot include prohibiting you from testifying and/or filing an administrative claim against the employer.

# 3 Ban on rehiring. Employers cannot include “no rehire” clauses in settlement agreements. Under section 1002.5 of the California Code of Civil Procedure, a settlement agreement cannot contain a provision that prohibits or prevents you from having future employment with the employer against whom you filed a claim (or any parent company, subsidiary, division, affiliate, or contractor of your employer). Said clauses would be considered void.

If you need help resolving an employment claim or have questions about settlement agreements, contact an employment law attorney.

Until when can you claim unpaid wages in California?

Have you recently discovered that your current (or former) employer did not pay you all of your wages? Perhaps you always knew that there was something wrong with your salary and paychecks, but you did not know your rights or did not have enough information to verify your suspicions.

After years of work, there could be thousands of back wages that you deserve but have not yet received. Your employer may owe you salaries in these cases:

1. Minimum Wage Violations: California’s minimum wage is significantly higher than the federal minimum wage of $7.25. In certain states, employers can pay employees less than the minimum wage if they receive enough tips to make up the difference (called a “tip credit”). However, California does not allow a tip credit.
2. Unpaid overtime: In California, employees are entitled to time and a half if they work more than eight hours in a day or 40 hours in a week; they are also entitled to time and a half during the first eight hours on their seventh consecutive workday.
3. Unpaid breaks and time off: California grants employees the right to one 30-minute unpaid meal break and one paid 10-minute break for every four hours (or a significant fraction of four hours) worked.

Is it possible to do something in this situation? If so, will you be able to collect all that is owed to you?

California has some limitations on how long you can go back on an unpaid wage claim. The first thing to keep in mind is that you can file a lawsuit against a current or former employer. Second, you should know that you have up to four years – depending on the circumstances – to file your claim.

What do you need to make a claim?

It is beneficial to have supporting documents to make your claim. Some possible documents that you could use are:

• Work time records
• Returned paychecks
• Pay stubs and paychecks
• Employment information notice

Note: Unpaid wages may include unpaid commissions, unpaid vacations, and unpaid reimbursements for work expenses.

Employee or Independent Contractor?

Using a true independent contractor can relieve businesses of the many burdens imposed by California and federal labor laws, but simply calling someone an independent contractor does not make them one in the legal sense. What’s more, it could affect them. Mislabeling a worker as an independent contractor creates a tax and labor penalty liability due to the failure to meet the many legal obligations owed to an employee, such as wage and hour requirements.

California courts and administrative agencies have generally applied common law principles (policies not written but followed by custom) in determining independent contractor status. However, there have recently been significant advances in independent contractor legislation.

The Los Angeles Superior Court adopted a rigid “ABC test” to distinguish an employee from an independent contractor. However, the test was initially limited to the Industrial Welfare Commission (IWC) Wage Orders application. The ABC test was codified and expanded, making it the general test to apply wage orders and unemployment and work insurance codes.

How to know whether you are an independent contractor or an employee?

The most important factor involves the independent contractor’s right to control the manner and means of achieving a result, even if the contractor does not exercise that right in every detail.

Under the ABC test, you are presumed to be an employee unless your company can prove that:

• You are free from the control and direction of your contractor concerning the execution of the work
• You perform work that is outside the usual course of your employer’s business
• You are usually engaged in an established trade, occupation, or independently established business of the same nature as the work performed.

If your case is not one of those previously mentioned, you must be classified as an employee.

The consequences of misclassification

It is estimated that up to $1.5 billion in income, Social Security withholdings, and unemployment tax income are lost annually due to the misclassification of up to 3.5 million workers as independent contractors.

If you believe that you have been classified as an independent contractor when, you are actually an employee, do not hesitate to contact us. Demand your rights!

How do I know if I am owed overtime pay at work?

Under California law, you are entitled to additional pay if you work hourly and exceed 8 hours in a single workday. Sadly, many employers fail to meet their legal obligation to pay workers their full wages for overtime work. Some employers go so far as to create confusing time entry systems, mislead employees, lie, and avoid paying their salaries.

Read on to find out if you are entitled to an additional payment.

Overtime in the state of California

Most hourly workers in California are owed 1.5 times their regular wage for every hour worked over 8 hours in a single workday. This amount increases to 2 times the salary if it exceeds 12 hours in a single working day.

Also, on the 7th consecutive day of work in a workweek, employers must pay employees 1.5 times the regular rate for the first 8 hours of work. After that, the rate of pay increases to twice the standard rate for each hour worked above 8 hours on the 7th consecutive day of work.

Are you an exempt or non-exempt employee?

If you are a manager or receive a salary instead of an hourly wage, you may not be owed overtime pay when your work hours exceed 8 in a single workday. However, even if you are paid wages, you may still be owed overtime pay if your total income is below a certain amount. If you have questions about whether you are being paid enough to be exempt from overtime pay, speak with an experienced employment law attorney.

Unfortunately, many employers wrongly classify their employees as “exempt” or managerial to avoid paying overtime wages.

Sometimes you are not the only one.

In many cases, non-payment of wages is not an isolated problem, and several of your co-workers may be affected. When that’s the case, a class-action lawsuit may be necessary to hold the employer accountable and get you and your co-workers the wages owed to you.

Discriminatory Practices in Workplaces in California: Gender Discrimination

It is illegal for employers to pay certain employees less depending on their gender under the California Equal Pay Law. Despite this, surveys and statistics reveal that women earn 79 cents for every dollar men earn for doing the same jobs. As a working person in California, you should know your rights and options if an employer is engaging in discriminatory wage practices.

How does California apply the Equal Pay Law?

In a relatively recent development, the California Equal Pay Act now requires employers to report how much employees earn and the functions of their jobs. In addition, the Equal Pay Act requires the ethnicity, race, and gender of employees to be reported so that the data can be quickly examined. This information helps the state investigate employers when allegations of gender discrimination or illegal wage practices arise.

If you believe that your sex/gender is a reason you are being paid less, you can work with an employment law attorney and file a wage claim.

These are possible indicators that you are being discriminated against in your workplace:

• You are assigned more work without any promotion or pay increase that reflects the new load.
• You work more hours than you should for the same amount of pay.
• You are rejected for promotions or raises despite having higher qualifications than your co-workers.
• You have observed a trend in the company where people of a specific gender receive promotions and pay raises much more quickly and frequently.

These are just some of the signs that could suggest a significant problem of discrimination in the workplace. There may also be other signs unique to your job or industry. If you suspect or believe that you are not being paid fairly, consider contacting a California employment law attorney to learn about your options. Para Los Trabajadores is here to help you.

Am I entitled to paid vacation days?

Time away from work to rest and recharge is vital to maintain a healthy and motivated workforce. That is why many employers consider vacation a necessary part of the employment agreement rather than a luxury. That being said, not everyone who works receives vacation days. There is no legal mandate that requires employers to provide vacation time, regardless of an employee’s status. Many people falsely assume that they are legally entitled to paid vacation if they work full time, but sadly, that is not the case. 

Below is a summary of the most common types of vacation that employers can and do offer. Since vacation time is not legally mandated, it is important to ask about time off during the interview and hiring process to ensure that you understand the company’s policies. 

Common types of vacation that employers offer:

• Paid vacation: Most employers offer paid time off to full-time employees, but it is not guaranteed. Some benevolent employers even offer paid time off to part-time employees. If your employer does offer vacation time, you may be awarded a certain amount of days off a year. You may accrue time off with every day that you work, or you may even be offered “unlimited” time off, which is newly popular among employers who trust their workforce to make responsible decisions.
• Use-it-or-lose-it time off: This type of time off expires after a certain amount of time. Some companies give their employees one year to use their time off before they forfeit the time, and in the case of floating holidays, some companies are even stricter with their timelines. For example, if you volunteer to work on Thanksgiving Day, you may be awarded a floating holiday that you can take any time during November. 
• Unpaid time off: If your employer offers unpaid time off, you can step away from work, but you will not earn money when you do so. This is more common in the part-time workforce who do not receive benefits from their companies.

Remember to always inquire about time off policies in your workplace. Rules and regulations change, so it is crucial to keep abreast of what is up to date within your organization. If you need legal representation or support surrounding the use of paid vacation days, then contact Para Los Trabajadores for help and assistance.

3 Things You Should Receive When Leaving Your Job

Whether due to resignation or dismissal, specific procedures must be carried out after leaving a position in a company. This is what an employee should get upon separation from employment.

Final payment

An employer cannot wait until the next regular payday to pay the final compensation owed to an outgoing employee. The Labor Code requires an employer who terminates an employee immediately to pay all outstanding wages. The employer must also pay the value of earned and unused vacation time, but not unused sick leave.

An employee who quits after giving his/her employer at least 72 hours’ notice must also receive final pay on the last day of employment. An employee who gives less than 72 hours notice of his/her intention to resign must receive final salary no later than 72 hours after giving the notice.

Notice about relationship change

Under Section 1089 of the California Unemployment Insurance Code, an employer must immediately notify an employee of any change in employment no later than the effective date of the change (demotion, layoff, change to an independent contractor, etc.). However, the Employment Development Department (EDD) explains on its website that an employer need not provide such notice to an employee who voluntarily resigns. Failure by an employer to provide the legally required notice is a misdemeanor.

Information on California Programs for the Unemployed

Section 1089 of the Unemployment Insurance Code requires employers to give an employee subject to full or partial layoff, leave without pay, or change to an independent contractor, an EDD brochure that explains unemployment programs, such as unemployment insurance, disability insurance, paid family leaves, and a variety of other services for the workforce, including job search and resume workshops.

Is favoritism in the workplace legal?

By now, you probably know that employers cannot discriminate based on race. But… What happens if there is no adverse labor action but rather an employee or group of employees who are treated better than you because of some specific characteristic?

Most federal and state laws make this illegal. However, favoritism is not unlawful per se, but only when it is based on the inclusion or exclusion of someone from a protected class.

These are specific characteristics of an individual that the laws will explicitly protect from discrimination. Here are some laws that prohibit discrimination:

• Against race, color, religion, sex, gender identity, or sexual orientation: Title VII of the Civil Rights Act of 1964.
• Against age, if you are 49 or older: Age discrimination in employment law.
• Against Disabilities: Americans with Disabilities Act of 1990.
• Against Pregnancy: Pregnancy Discrimination Act of 1978.
• Against Genetic Information: Genetic Information Non-Discrimination Act of 2008.

When discrimination based on these traits occurs in the workplace, it is generally adverse to the employee. For example, a boss decides not to promote an employee because she is pregnant. Or a hiring manager chooses to fire an employee who is 60 years old to bring “young people” into the company.

Favoritism and preferences in the workplace are perfectly legal, as long as they are based on characteristics not protected by law (such as those listed above). So if your colleague gets a more significant annual bonus than everyone else because he graduated from the same college as your boss, that’s legal.

But if that same decision involving the annual bonus that went to your colleague was made only because she is a woman? That will almost always be illegal, assuming the employer is subject to applicable law.