Employment At Will

Under Labor Code § 2292, in California like in many other states the relationship between and employer and an employee is "at will." This means that unless there is an agreement to the contrary, an employer may terminate an employee's employment or an employee may resign or quit at will and without any reasons.  The only exceptions to this rule are those stated here under discriminatory practices.  This presumption of "at will" employment can be overcome if the employee can establish that he or she relied to her detriment on a promise of employment or if the employee can establish the existence of an “implied-in-fact” promise by the employer not to discharge him or her.  These types of "implied-in-fact" agreements can be oral and can be established by referring to the parties course of conduct.  California’s Civil Code § 1621 states "An implied contract is one, the existence and terms of which are manifested by conduct." Courts generally look at the length of service, actions and words of the employer, industry practices and whether the employee gave some kind of independent consideration in addition to the work performed for the employer (i.e. covenant not to compete.) Of course, if the parties have entered into a written "at-will" agreement which has an "integeraton clause", then such an agreement will probbaly not be overcome by proof of an implied understanding contrary to the agreement.

If you have any question regarding employment law, sexual harassment, racial discrimination, hostile work enviroenment, overtime wages, non-payment of wages or other legal matters please call 877-529-4545 to discuss your case with an expereinced Los Angeles, Orange County, Riverside employment attorney or an employment lawyer.

Wage Issues

California Labor Code § 200 defines wages as “…all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.” Just as the federal wage claims are governed by the FLSA, California law which deals with wages and how they should be paid is contained in the Labor Code and the Industrial wage Commission Orders, and the Labor Commissioner’s office is charged with enforcing these laws. There are currently 17 Wage Orders which can be viewed at Department of Industrial Relations site at www.dir.ca.gov/IWC/WageOrderIndustries.htm. These wage Orders covers all fields of occupation and provide guidance to employers as to whether as employee should be classified as “exempt” or “non-exempt” from overtime requirements.  Except for overtime claims other claims which involve wages due to an employee include violation of break and meal period requirements, deduction from an employees paycheck, non-payment or untimely payment of a paycheck and penalties levied on non complying employers. These topics are generally addressed by the Labor Code.  Labor Code § 203 specifically deals with untimely remittance of an employees final paycheck and states that “If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced; but the wages shall not continue for more than 30 days…”  This penalty could be quite substantial for those employees whose earning are high.  It is important to note though that Labor Code’s protection only applies to employees and not independent contractors.  That is why large parts of many employment cases are spent by plaintiffs on trying to establish that he/she was actually an employee of the employer. Following is a link to California’s Labor Code:  http://www.leginfo.ca.gov/.html/lab_table_of_contents.html.

Exempt Non-Exempt Debate:

As stated earlier the question of whether an employee can be classified as exempt and hence not entitle to overtime wages has become one of the most litigated issues facing labor law practitioners. The reason is that the difference could mean millions of dollars for employers and thousands of dollars for employees.  Conventional wisdom was that if an employee is tagged as salaried and did in fact receive a salary that employee was not entitle to overtime.  This assumption was specially held to be true when applied to high earning employees, i.e. sales people, engineers.  Fact of the matter is that what an employer calls an employee has no bearing on whether that employee is entitled to overtime or not.  What determines whether an employee is entitled to overtime wages or not is whether the employee is considered exempt or not.  Federal laws dealing with this topic are documented in FLSA and California relies on Wage Orders to determine if an employee is exempt or not. 

California currently has 17 wage orders issued by Industrial welfare Commission (IWC) many of which deal with how to classify employees in different fields.  Employers would be best advised to contact the Employment Law Team ™ or another competent attorney to help them navigate these treacherous waters.  This site is to provide a brief glimpse into this complicated field and should not be relied on as legal advice by either an employee or employer.

As a starting pint it should be noted that the following categories of employees are generally considered to be exempt from the IWC rules:

• Licensed professionals, i.e. doctors, lawyers, architects, engineers, and certified public accountants.
• Managers who hire, fire, and train, and who spend less than 50 percent of their time performing the same duties as their employees.
• Top administrators who create policies for a business.
• Outside salespersons.

Once we get past the above group the determination as to how classify an employee becomes more complicated and will require and analysis of that employees duties, pay, skills and education.  For instance to qualify for the so called “while collar” exemption, the employee must meet both the duties and salary test. These tests will look to see if: the employee: primarily spends work time on white-collar duties, exercises discretion and independent judgment, and receives a fixed salary. There are a number of other exemptions, i.e. professional exemptions or artistic professionals, which can apply to an employee as well. The initial assumption of all employers should however, be to treat employees as non-exempt; then try to see if application of the IWC and other rules would in fact take that particular employee into the exempt status or not.

Illegal Deductions From An Employee's Check:

Generally an employee must receive all of his/her wages on payday.  California and federal laws protect employees' wages and limit the deductions that may be taken, i.e. taxes, social security, disability or court ordered garnishments. In fact, employers may not make certain deductions even if employees agree to them.  One of the exceptions to this rule is deductions for “advanced wages.”  In this situation as employee has received an advance pay for her upcoming paycheck and would like to pay that advanced sum back from her next check.  If the employer procures the employees authorization to deduct this sum from the next paycheck in writing or gives the employee that he intends to make the deduction, then the employer can go ahead and make that deduction.

There are also differences between a “loan” to an employee and an “advance” to an employee which must be considered before the employer decides to make any kind of deduction to an employee’s check.

One practice that gets many employers in trouble is the practice of deducting money owed by the employee from that employee’s final paycheck. Employees may quit or be fired before earning the wages, vacation, or sick days that a company has advanced. In this situation, the company may follow the appropriate procedure to deduct any balance owed from wage advances when non-exempt employees leave their jobs.  However, an employer may not dock the final paycheck of exempt white-collar employees to recover advanced wages or days off. For employee debts other than wage advances, a company may not collect any outstanding balances at termination (a "balloon" payment) unless the employee gives a new written authorization.Failure of an employer to follow the proper procedures in making deductions from an employee’s check could subject the employer to sever penalties which could include : civil penalty of up to $100 for each employee and each payday they wrongly withhold wages, plus 25 percent of the unpaid amount. Employers may also be convicted of a misdemeanor and fined up to $1,000, imprisoned for up to six months, or both. Finally, if employers fail to pay employees correctly because of improper deductions, they may violate minimum wage, overtime, and payday rules.

Timeliness Of Final Paycheck To An Employee:

Labor Code §§ 201, 202 and 208 deal with payment upon termination of employment. If the employer “willfully” violates the provisions of Labor Code §§ 201 and or 202 regarding timing of payment, § 203 provides “waiting time penalties” of up to 30 days' wages.  California Labor Code § 208 states that the final payment of wages to a discharged employee should be “at the place of discharge, and every employee who quits shall be paid at the office or agency of the employer in the county where the employee has been performing labor.”  This is an important fact as in situations in which the check is mailed and thereafter lost or stolen, the employer can be held liable for “nonpayment” of wages. Labor Code § 201 makes it mandatory except for few exceptions that all terminated employees be paid their wages immediately and upon discharge.  Discharge is held to apply to termination of a project and not just situations in which the employee-employer relationship is terminated. Labor Code section 202 addresses the issue of payment of wages to employees who quit or resign. Under this code section, employers must pay all compensation to an employee who voluntarily resigns within 72 hours of resignation. Vacation pays which are owed to an employee will be treated as regular pay for the purposes of payment.

Prevailing Wage Claims:

Under California law (just as federal law) contractors and subcontractors working on public work projects are mandated to pay their workers what is called the "Prevailing Wage."  This requirement is codified by California Labor Code Section 1774 et seq.  The code defines "public works" as such work as construction, demolition, installation or repair done under contract or paid out of public funds.  Work done during design and preconstruction phases are also subject to this law.  California Labor Code Section 1720 has an in-depth definition list for all jobs subject to paying prevailing wages. http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=20302427509+1+0+0&WAISaction=retrieve

What are Prevailing Wages:

Prevailing wages are generally set by the Director of Industrial Relations.  Labor Code Section 1773 further provides that " In determining the rates, the Director of Industrial Relations shall ascertain and consider the applicable wage rates established by collective bargaining agreements and the rates that may have been predetermined for federal public works, within the locality and in the nearest labor market area. Where the rates do not constitute the rates actually prevailing in the locality, the director shall obtain and consider further data from the labor organizations and employers or employer associations concerned, including the recognized collective bargaining representatives for the particular craft, classification, or type of work involved. The rate fixed for each craft, classification, or type of work shall be not less than the prevailing rate paid in the craft, classification, or type of work."   An experienced prevailing wage attorney such as employment and discrimination attorney of Fakhimi & Associates  can assist you in making sure that your rights are not abused and tax payers money is not wasted.

What is the Procedure to Ensure compliance with the Laws:

Who can bring a lawsuit to enforce Labor Code § 1770 et seq. has been the topic of many court of appeal cases.  In Tippett v. Terich (Crt Appl 4th Dist 1995) 37 Cal.App.4th 1517, Court of Appeal for the 4th District of California held that previous decisions by the labor commissioner that there was no private right of action to enforce public works statute was NOT LAW of the case in subsequent cases.  Tippette further held that an affected worker could bring a breach of contract if he was promised prevailing wages and denied them later.  The court also stated that indirect action can be brought under the theory of “third part beneficiary”.  Employment Law Team and Fakhimi & Associates California employment attorneys can assist you in deciding whether a violation of prevailing wage laws has teaken place.

 

Discrimination Issues

FEHA:

California’s Fair Employment and Housing Act provides a broader degree of protection to employees than Title VII. To begin with FEHA as codified under California Government Code § 12900 et seq. reaches small employers (five or more employees) which would not be subject to Title VII. FEHA also protects against discrimination base don marital status.  Following paragraphs will address some of the more basic protections extended to an employee by FEHA. For a more in depth analysis and discussion of your particular case please contact Fakhimi & Associates.  Just as the EEOC is vested with the duty to administer federal labor laws, in California Department of Fair Employment and Housing (DFEH) has the same authority. To begin with it must be stressed that in order for an affected employee to seek to rely on FEHA for an alleged violation of his or her rights he or she must either exhaust the Department’s administrative remedies or seek a “right to sue notice” from the Department. Employees are encouraged to contact the attorneys at the Employment Law Team ™ or DFEH so as to protect their rights. Following is the link to DFEH which discusses the claim filing procedure:  http://www.dfeh.ca.gov/complaintRtoS.asp.

Who Is Protected:

FEHA applies to employees or applicants. Therefore, volunteers who receive no direct or indirect financial benefit for their services or independent contractors will not receive the projection of the statue.  California Labor Code § 2750.5 names few factors which can be considered when determining whether the worker is an employee or an independent contractor.  Amongst those factors are whether “the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.” “ the individual is customarily engaged in an independently established business.“ “  the individual's independent contractor status is bona fide and not a subterfuge to avoid employee status.”

What Is Prohibited:

Under FEHA an employer cannot refuse to hire or employee, refuse to select for training program leading to employment or discriminate in compensation or terms, condition or privileges of employment, if such decision is taken because of a protected characteristics. The adverse employment action involved must be substantial and must negatively affect the employee in order for it to be a violation of the code. Harassing an employee due to the protected characteristics is also prohibited. This protection is generally relied on by women and men who feel that they are being harassed due to their sex. Finally, FEHA also makes it unlawful for an employer to retaliate against an employee for opposing any practice which the employee reasonable felt was in violation of the code or for filing a complaint or testifying in any proceedings related to FEHA accusations.

What Are The Protected Characteristics:

An employee is protected from termination, other adverse actions, harassment and retaliation, based on his or her: Race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, sex, marital status, pregnancy or childbirth, sexual orientation or age (if over 40.)

Retaliation:

In addition to prohibiting direct discriminatory conduct, FEHA also prohibits retaliation against an employee for opposing any practice forbidden by the Act or for filing a complaint, testifying, or assisting in proceedings under the FEHA. In august of 2005 and in a 4-2 decision, the California Supreme Court held that an employee can maintain a retaliation action against an employer even where the employee’s protected activity is “subtle” and the employer’s actions are negligible.  The case of Yanowitz v. L’Oreal USA, Inc., involved claims made by a former employee who claimed that she was fired after she refused to terminate an employee based on the orders from her superiors. According to plaintiff the employer wanted to replace the employee and replace her with someone better looking.  According to the court the plaintiff in the case had exercised a protected acitivity and had suffered adverse employment action as a result.  Los Angeles and Riverside employment law attorneys of Employment Law Team can help evaluate your case and advise you on whether the actions taken against you rise to the level of retaliation. Our attorneys can also evluate your whistle-blowing case.

Legitimate Business Reasons May Excuse Discrimination!

One should note that even a discriminatory employment practice may be allowed if there is a legitimate business reason to discriminate. Generally, employers must be able to prove an objective relationship between the discrimination and the requirements of the job or the business. See Cal. Gov. Code § 12940 at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=12001-13000&file=12940-12951.

As an example an employer may discriminate without violating the FEHA if:

- being in a particular protected classification is a legitimate and necessary qualification for the particular job; or
- they are complying with an affirmative action plan, security regulations, or other laws.

Therefore, an employer may be allowed to  “intentionally discriminate” against an employee if a particular characteristic is a "bona fide occupational qualification" (BFOQ); or if the employer has a policy that results in “adverse impact discrimination” if that policy is necessary for their business.

What is a BFOQ: Bona-Fide Occupational Qualification is a defense allowing an employer to limit a particular job to members of one sex, religion, age group, or national origin group. The courts have held that BFOQ is a very narrow exception to the general prohibition against discrimination on the basis of those characteristics. Therefore,  an employer claiming that age (or any other trait) is a BFOQ for a job must show that all or substantially all members of the excluded group are incapable of performing the duties of the job and that failure to allow the exclusion would undermine the "essence" (i.e., the central purpose or mission) of the employer's business. 

 

Sexual Discrimination v. Sexual Harassment:

Sexual harassment differs from sexual discrimination and the two should not be confused.  While discrimination refers to a denial of civil rights or job opportunities based on the employee's gender, sexual harassment relates to behavior which is inappropriate or offensive by the employer, managers of the employer or even co-workers if employer knows about the behavior and does nothing to stop it.  Sexual harassment can also involve "quid pro quo" claims which basically involve requests for sexual favors in exchange for advancement, more pay or even a promise not to fire the employee. Our office has handled and is currently handling a number of cases involving allegations of hostile work environment or "quid pro quo." Contact our Los Angles, Orange County, Riverside, San Bernardino, Ventura county sexual harassment attorneys and lawyers for a free consultation on your case. We have handles cases involving:
 
Hostile work environment
Sexual assault, sexual advances, lewd comments
Requiring sexual favors for advancement or benefits (“Quid Pro Quo”)
Pregnancy Discrimination
Failure to correct harassment in the workplace
Retaliation for reporting harassment

You should note that by law employers with more than 50 employees are mandated to have sexual harassment training for all of their managers and most businesses have written sexual harassment prevention policies in place. Our Los Angeles sexual harassment attorneys can prepare your case by staring to review the policies in place to make sure that the employer is in compliance with California laws. To learn more about California Fair Employment and Housing Commission's Regulation dealing with mandatory sexual harassment training please visit FEHC's site at http://www.fehc.ca.gov/pub/harassment_training.asp.  This Regulation essentially makes changes to and adopts AB 1825.  

Sexual Discrimination:

Sexual discrimination in California deals with denying an employee certain benefits and rights or mistreatign that employee because of that employees sex, gender or sexual orientation. As stated before the main source of law in Califoria for sexual discrimination is the FEHA and the states's Constitution. Fair Employment and Housing Act, FEHA, bans employment and housing discrimination. Follwoing is a link to the Depratment's site and a recitation of the Act. http://www.fehc.ca.gov/pdf/FEHA_Outline.pdf. The California constitution also prohibits discrimination based on sex as against public policy. Following is a link to the text of California's State Constitution http://www.leginfo.ca.gov/const-toc.html.

Perceived Sexual Orientation.                                      
The discrimination alleged can be based on the employer's perception that   the employee might belong to a protected group, even if the employee actually does not. As an example, the employer may perceive the employee to be gay and due to that fact fire him/her or give him/her a lower salary.  That employee could potentially have a cause of action for discrimination even if he/she is not in fact gay. 

Pregnancy Discrimination. 

Section 12945 of the Government Code ( FEHA)  states that it shall be unlawful employment practices, unless "based upon a bona fide occupational qualification" for an employer to refuse to allow a female employee disabled by pregnancy, childbirth or related medical conditions to take leave for a reasonable period not more than four months and then return to work, or to refuse to provide reasonable accommodations for an employee for conditions related to pregnancy or childbirth if requested. It is generally held that a woman must be unable to perform one or more essential functions of her job without undue risk to herself or successful completion of her pregnancy, or to other persons to be considered "disabled." Medical opinion of the employer’s doctor or her health-care provider will determine whether she is "disabled" by pregnancy or a related medical condition. It is important to note that the leave discussed here can be taken before or after birth or at any period of time the woman is physically unable to work because of the pregnancy or pregnancy-related condition. Periods of leave may be totaled in computing the four months required.

Following are a few examples of what conduct can be considered to trigger anti-discrimination laws:
• Hiring
Failure to hire a qualified applicant because of his/her sex or sexual orientation.
• Firing
Terminating or firing an employee because of his/her sex or sexual orientation (i.e. gay, transgender, bisexual.)
• Promotion
Failure to promote the employee due to her or his sex or sexual orientation.
• Job Classification/Pay
Paying employee less or not giving them higher positions due to their sex or sexual  orientation or perceived sexual orientation. 

 

 

Age Discrimination:

The California Fair Employment and Housing Act (FEHA) prohibits an employer from discriminating against an employee due to that employee’s age if that employee is over forty (40) years old. In most cases in order to establish that there has been a violation of the code plaintiff would need to prove that he or she:

• Belongs to a protected class (i.e., is over forty (40))
• Was subjected to an adverse employment action (like termination, demotion, suspension).
• Similarly situated employees who are not part of the protected   group  were treated differently and more favorably.

Los Angeles and Orange County employment lawyers of Employment Law Team™ also rely on statistical and comparative evidence in order to establish their cases. This is because most age discrimination cases don’t involve an employer blatantly admitting that he or she was discriminating against an older employee, rather references to empirical data showing from the employer is needed to establish the case for Plaintiffs. Age discrimination allegations become more prevalent as the economy slows down due to the act that employers can hire less experienced and younger employees at salaries much lower than the older more experienced workers. 

Disability Discrimination (FEHA)

Just as ADA prohibits discrimination in the work place based in an employee’s disability, California’s Fair Housing and Employment Act (“FEHA”) prohibits disability discrimination as well.  This statute however received serious changes when on September 30, 2000, Governor Gray Davis signed Assembly Bill  “ AB 2222”  legislation that significantly expands protection for disabled workers in California beyond the protections then afforded by the federal Americans with Disabilities Act of 1990 ("ADA") [42 U.S.C. Sec.12101 et seq.] into law. The new law modified sections of the Fair Employment and Housing Act ("FEHA"), [Gov't Code Section 12940], which is the California statute that prohibits discrimination in employment. AB 2222 went into effect on January 1, 2001. The new law greatly enahcned and broadened the definition of “disability” in both physical and mental cases. Under AB 2222, and Gov. Code Sec 12940, the definitions of "mental disability" and "physical disability" simply require that the disability "limit" a major life activity -- not "substantially limit," as required by the ADA. As a result, more mental and physical impairments will qualify as disabilities under California law than under the federal law,  this is due to the fact that the "substantial" standard has been rejected. AB 2222 also lowers the California disability standard by covering disabilities that make the achievement of a major life activity difficult, rather than the standard previously set by the California Supreme Court that the disability had the disabling effect of making achievement unusually difficult.

Orange County and Los Angeles discrimination lawyers of Employment Law Team ™are very familiar with the definitions of disability used by courts and can assist our clients in determining whether their particular case subjects them to protection under FEHA’s disability protection and discrimination statues. Call us at 877-529-4545 or contact www.employmentlawteam.com for more information.

The changes made to FEHA expanded protections for disabled employees in the following three ways: (1) it provides broader definitions of what constitutes a physical and/or mental disability or medical condition; (2) it imposes a requirement on employers to engage in "a timely, good faith, interactive process" to determine reasonable accommodations for their disabled employees; and (3) it prohibits disability-related inquiries or examinations by employers, except under certain circumstances. Each of these changes, and their effect on California employers, is discussed below.  Whereas under the ADA, a disability is a physical or mental impairment that substantially limits one or more of the major life activities of an individual. The FEHA amendments in AB 2222 make it clear, however, that a different standard applies in California to determine whether an employee is disabled and therefore entitled to the protections of the disability discrimination laws.  As a result of these changes to the explicit definitions of disabilities, a broader range of disabilities will be protected in California under the FEHA. In the past, under ADA case law, the courts evaluated impairments based on the severity and duration of the ailment. Now the courts can and will consider impairments that are less severe and of a more limited duration to qualify as disabilities in California. Under this lower standard, a broken arm, a strained back, or significant stress could all qualify as protected disabilities in California.  Alcoholism and/or drug addiction are recognized disabilities under the law. Putting up with employees who use alcohol and drugs in the workplace, i.e. being drunk or under the influence of drugs, or missing work or being late because of a hangover/binge is not however considered a reasonable accommodation and/or may subject you to immediate termination. However, treatment for alcoholism or drug addiction may be considered a reasonable accommodation for people with the disease of addiction. The key is to seek help before you are terminated for the behavior. An employer may not discriminate or harass someone because of their status as a recovering alcoholic/drug addict.

Orange County and Riverside discrimination lawyers of Employment Law Team ™are very familiar with how and when the “interactive process” is to be utilized bvy employers and can  assist our clients in determining whether their particular case subjects them to protection under FEHA’s disability protection and discrimination statues. Call us at 877-529-4545 or contact www.employmentlawteam.com for more information.

What’s more under the new California law, whether or not a potential disability or ailment limits a major life activity must be considered without regard to measures which may mitigate those limitation, i.e. medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity." Therefore, in California, employees will be considered disabled and entitled to protection under the FEHA, even if their impairments have been remedied by medicine, eye glasses, or their work environment.   One must note however that to be considered a disabling condition, generally, a disability or limitation must be, or be perceived as, longstanding or permanent except for pregnancy disabilities which are covered under a separate law. Temporary disabilities may provide for leave under the California Family Rights Act or under FMLA.

"Interactive Process" defined:

Prior to the passage of AB 2222 and modification of FEHA, employers were required under the FEHA to make a reasonable accommodation for the known physical or mental disability of an applicant or employee, unless that accommodation produced undue hardship to the employer's operation. The new law mandates that employers engage in a timely, good faith, interactive process with employees to determine effective reasonable accommodations, if any, when an applicant or employee with a known physical or mental disability or medical condition requests one.  This process is sometimes referred to as the “interactive process.”  It is unlawful for a California employer refuse to of fail to engage in the “interactive process.”  This requirement means that once the employer has notice that an employee is claiming a disability (even before a disability determination has been made), the employer must engage in a dialogue in a timely manner with the employee to determine what kind of a reasonable accommodation can be made. An employee also has a duty to engage in the good faith accommodation process. To that end, an employer can request medical certification of the disability and may seek to interact with the employee’s medical providers as part of the reasonable accommodation process to determine what would be a suitable accommodation. Employees who fail to engage in a good faith interactive process, and who loose their job as a result, may have no chance of recovery. If there is a breakdown in the interactive process leading to discharge or demotion, courts look to see who was responsible for the breakdown in the process. Therefore, it is very important that this process be documented. 

Orange County and San Bernardino discrimination lawyers of Employment Law Team ™are very familiar with protections extended to employees  under FEHA’s disability protection and discrimination statues. We have helped many clients in receiving a fair settlement for their employer’s illegal actions in violation of disability discrimination laws. Call us at 877-529-4545 or contact www.employmentlawteam.com for more information.

Questions That Employers Can Ask:

Whether an employer can ask disability-related questions or require medical examinations depends on whether the applicant has been given a conditional job offer or is employed. Employers may require a medical or psychological examination or make a medical or psychological inquiry into a current employee’s condition if the examination is job-related and the examination is consistent with business necessity.  Employers may also conduct voluntary medical examinations (including voluntary medical histories) which are part of an employee health program available to employees at that worksite.  Employers may require applicants to take a medical or psychological examination or make a medical or psychological inquiry into an applicant who has received an offer if the examination is job-related and consistent with business necessity; and all entering employees in the same job classification are subject to the same examination and not just the employees suspected of being disabled. An employer can never ask an applicant who has not been offered a job whether he or she has any mental or physical disabilities or demand that the applicant take a medical or psychological exam.

Conclusion

A disabled person who is other wise qualified (has the education, training, etc, required by the position) to perform the essential job functions, with or without an accommodation, must be treated equally with all other applicants and/or employees. essential job functions are generally defined as those job functions which the position requires. 

Orange County and San Bernardino discrimination lawyers of Employment Law Team ™are very familiar with protections extended to employees  under FEHA’s disability protection and discrimination statues. We have helped many clients in receiving a fair settlement for their employer’s illegal actions in violation of disability discrimination laws. Call us at 877-529-4545 or contact www.employmentlawteam.com for more information.

 

Labor Code:

California Labor Code § 98.6 makes it unlawful to an employer to discharge and employee or discriminate against an employee and or applicant for engaging in certain conduct protected under the Labor Code. Thos activities include but are not limited to: Political Activities (Labor Code § 1101); whistleblowing (Labor Code § 1102.5).  Applying for Workers compensation  is protected under Labor Code § 132(a) so an employee can be confident that his or her filing of a workers compensation claim will not result in termination and if it does it will be a violation of the code. Of course it is illegal to file fake claims and such filings could expose the employee to criminal liability.

California's Constitution:

Article I, § 8 of the California Constitution states that a person may not be disqualified from ensuing  a business opportunity or profession because of sex, race, creed, color or national or ethnic origin.  Therefore, affected employees, independent contractor or potential business partners can rely on this Article as well as the other laws states in this website should they be disqualified for an opportunity due to one of the enumerated factors. In such a case, this provision of the California Constitution can be a basis for a “public policy” or “tortuous discharge” claim which can be independently or as a part of a FEHA complaint.

Unruh Civil Rights Act:

California’s Unruh Civil Rights Act codified under Civil code § 51, prohibits business entities from denying “full and equal accommodations” to anyone on the basis of “sex, race, color, religion, ancestry, national origin, disability, or medical condition.” Although this law however does not apply to the employee-employer relationships, it can be invoked by independent contractors.

If you are an employer or an employee in the Orange County, Los Angeles County, Riverside County, San Bernardino County, Alameda county, Ventura county or San Diego County areas and would like to discuss your labor law related questions with an employment attorney or employment lawyer experienced in the filed of sexual harassment, overtime claims, discrimination, retaliation or whistle blowing please, call 877-529-4545 for a free consultation with an Employment Law Team, www.law4545.com, attorney well versed in this area of law.  Our affiliated firm Criminal Defense Team, www.law2188.com can also assist our clients with issues related to criminal law.

OTHER VIOLATIONS BY EMPLOYERS 

Employer’s Failure to Issue Employees Itemized Statements:

Under California Labor Code Section 226, every employer must on a semimonthly basis or when wages are paid provide each employee an itemizes statement showing the 1) gross wages paid, 2) number of piece rate units earned, 3)hourly or piece rate pay for the employee, 4) all deduction made to the paycheck, 5) net wages earned, 6) dates for which the check is paying the employee for, 7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.  The code further mandates that “[t]he deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.”  Employees are entitled to inspect these records with a reasonable request.  This code section does not generally apply to onsite residential dwelling managers. An employee may also bring an action for injunctive relief to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney's fees.

Any employer in violation of Section 226 is subject to penalties stated in Section 226.3 as well as criminal penalties.  Under Section 226.3 “Any employer who violates subdivision (a) of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250) per employee per violation in an initial citation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226.”

How it applies to you:

Many Employers take advantage of their hourly employees by paying them in cash or via check without taking out legal deductions.  This practice hurts the entire community in that less taxes are collected and benefits the employer in that he/she will not pay payroll taxes.  The employee can also suffer consequences due to the fact that his/her social security earning will not be reflected on her/his records.  The employee who is paid in violation of Sec 226 also will have to rely on the employer to know if the right amount of taxes have been deducted and if any deductions were made, that they were paid to the proper agencies.

What California labor and employment attorneys Employment Law Team can do to help:

Our California labor and employment attorneys (www.employmentlawteam.com) can ensure that there is strict compliance with Labor Code Section 226.  We have advised many major corporation on compliance with Section 226 and have represented employees in bringing action to enforce the requirements of the code section.  Most actions initiated to enforce Section 226 not only result in damages paid to the employee and a court order prohibiting the employer from violating the section, but also Employment Law Team can recover any costs and attorneys fees associated with any action as well.

If you reside or work in Alameda County, Santa Clara County, Orange County, Los Angeles County, Riverside County, San Bernardino County, Alameda county, Ventura county or San Diego County areas and believe that you or a loved one's employer is violating the law by not providing its employees with an itemized stub please, call 877-529-4545 for a free consultation with an Employment Law Team, www.employmentlawteamcom, attorney well versed in this area of law.  Our affiliated firm Criminal Defense Team, www.law2188.com can also assist our clients with issues related to criminal law.

Employment Law Team's sexual harassment lawyers and discrimination attorneys and labor lawyers can represent you or a loved one in:

Los Angeles county harassment and discrimination lawyers:
Agoura Hills, Alhambra, Angeles Vista, Artesia, Azusa, Baldwin Park, Bellflower, Beverly Hills, Big Pines, Boyle Heights, Burbank, Carson, Cerritos, Chatsworth, City Terrace, Claremont, Commerce, Compton, Covina, Culver City, Downtown LA, Downey, Eagle Rock, El Monte, El Segundo, Flintridge, Foothill Division, Gardena, Glendale, Glendora, Granada Hills, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Highland Park, Highway Highlands, Hollywood, Industry, Inglewood, Irwindale, Korea Town, La Canada, La Cresenta, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lenox, Little Rock, Little Tokyo, Lomita, Long Beach, Los Padrinos, Los Angeles, Los Feliz, Los Nietos, Lynwood, Manhattan Beach, Marina Del Rey, Monterey Park, Montrose, Northridge, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pearl Blossom, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Reseda, Rolling Hills Estates, San Fernando, San Gabriel, San Pedro, Santa Clarita, Santa Fe Springs, Santa Monica, Signal Hills, Sylmar, Temple City, Three Points, Torrance, Valinda, Van Nuys, Ventura County, Verdugo City, Viewpark, Walnut, West Covina, West Hollywood, Westlake Village, Whittier, Wilmington

Orange County labor law attorneys:
Aliso Viejo, Anaheim, Balboa Island, Brea, Buena Park, Capistrano Beach, Corona Del Mar, Costa Mesa, Coto de Caza, Cowan Heights, Cypress, Dana Point, El Modena, El Toro, El Toro Marine Base, Foothill Ranch, Fountain Valley, Fullerton, Garden Grove, Huntington Beach, Irvine, La Habra, Laguna Beach, Laguna Hills, Laguna Niguel, Lake Forest, Leisure World, Lemon Heights, Los Alamitos, Mission Viejo, Modjeska Canyon, Newport Beach, Orange, Orange Park Acres, Placentia, Rancho San Margarita, Rossmoor, San Clemente, Santa Ana, Seal Beach, Silverado Canyon, Stanton, Sunset Beach, Surfside, Tustin, Villa Park, Westminster, Yorba Linda

Riverside County employment lawyers in :
Aguanga, Anza, Arlington, Calimesa, Casa Blanca, Cherry Valley, Corona, Corona Hills, Edgemont, El Cerrito, Gilman, Glen Avon, Glenn Valley, Hemet, High Grove, Home Gardens, Homeland, Hot Springs, Idyll, La Sierra, Lake View, Mead Valley, Meadow Brook, Mira Loma, Moreno, Mt. Lanter, Murrieta, Norco, Nuevo, Pedley, Perris, Quail Valley, Riverside, Rodea, Romoland, Sage, San Jacinto, Santa Ana Canyon, Soboba, Sun City, Temecula, Temescal Canyon, Vail Lake, Valle Vista, Wildomar Lake, Winchester

 

San Bernardino County wrongful termination attorneys
Adelanto, Angles Oaks, Apple Valley, Bloomington, Chino, Chino Hills, Colton, El Mirage, Etiwanda, Forest Falls, Grand Terrace, Helendale, Hesperia, Highland, Loma Linda, Lucerne Valley, Mentone, Montclair, Ontario, Oro Grande, Phelan, Pinon Hills, Rancho Cucamonga, Redlands, Rialto, San Bernardino City, Victorville, Wrightwood, Yucaipa

 

San Diego County employee's rights lawyers in:
Aalomar Mountain, Alpine, Bonita, Bonsall, Borrego Springs, Bostonia, Boulevard, Camp Pendleton, Campo, Cardiff, Cardiff by the Sea, Carlsbad, Chula Vista, Coronado, Del Mar, El Cajon, Encinitas, Escondido, Imperial Beach, La Mesa, Lemon Grove, National City, Oceanside, Poway, Rancho Bernardo, San Diego, San Marcos, Santee, Solana Beach, Vista, Crest, Descanso, Dulzura, Fallbrook, Guatay, Jacumba, Jamul, Julian, La Jolla, Lake San Marcos, Lakeside, Leucadia, Lincoln Acres, Mount Laguna, Nestor, Ocean Beach, Olivenhain, Pacific Beach, Pala, Pauma Valley, Pine Valley, Potrero, Rainbow, Ramona, Ranchita, Rancho Santa Fe, San Luis Rey, San Ysidro, Santa Ysabel, Spring Valley, Tecate, Valley Center, Warner Springs

Ventura County, Norwalk.

If you have a question about sexual harassment, racial discrimination, disability law, overtime laws and would like to speak to an Orange County, Los Angeles, Riverside, Irvine, or San Diego lawyer contact us at www.law4545.com. For questions about corporate law contact www.generalcounselprogram.com   

 

 

 

 

 

If you face a legal question related to labor and or employment law be it a federal or state issue in Orange County, Los Angeles County, Riverside County, San Bernardino County, Alameda county, San Francisco county or San Diego County call 888-529-2188 for a free consultation with an attorney well versed in the areas of: labor law, employment law, overtime laws, sexual harassment laws, wrongful termination, sexual discrimination laws and disability laws.