Labor Laws (Federal)

Employees and employers in California are subject to the labor laws as enunciated in California statues and case laws ( common law) and statues drafted by the United States Congress and cases handed down by the Federal courts, mainly the Supreme Court and the Ninth Circuit Court of Appeal. Although this might seem to make it quite easy to understand and apply the laws in this field one should not underestimate the complexity of this field of law. Following is a brief description of the current state of labor laws that affect Californian employees and employers. This information should only be looked at a starting point and not as a conclusive summary, nor should it be interpreted as legal advice or establishing attorney-client relationship in any way. Federal laws that affect employees are : ADEA, ADA, Title VII, and FLSA. These laws are then interpreted by federal courts all over the United States. State laws that affect California employees and employers are those stated above and : California Labor Code (see §§201-202, 1194) and the Division of Labor Standards Enforcement’s (DLSE) Wage Orders.

Wage Issues

Major source of federal wage law is the Fair Labor Standards Act (FLSA) . FLSA which is codified in Fair Labor Standards Act of 1938 (FLSA), as amended (29 USC §201 et seq.; 29 CFR Parts 510 to 794) prescribes standards for the basic minimum wage and overtime pay, and affects most private and public employment. The Act is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor. The question of who is exempt under the act has been the subject slew of court cases and is still the source huge verdicts and settlements. The Act covers “enterprises” with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies. However, the Act does cover the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally, or physically disabled or gifted; preschools, elementary, and secondary schools and institutions of higher education; and federal, state, and local government agencies. Additionally, employees of firms that do not meet the $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods. This last category is referred to as the “individual coverage” as opposed to the “enterprise coverage.” The Act also covers domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full time babysitters, if they receive at least $1,300 (2001) in cash wages from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers. Department of Labor’s (DLO) website at www.dol.gov/compliance/guide/minwage.htm has a very thorough explanation of the Act and its reach. FLSA’s laws can be enforced either through the department or in a private action. The U.S Department of Labor's Wage and Hour Division has recently placed a new FLSA Calculator on its website. The FLSA Calculator can help employers and employees better understand and calculate overtime pay. http://www.dol.gov/elaws/otcalculator.htm

Discriminatory Conduct

Age Discrimination

Another source of federal labor law is the Equal Employment Opportunity (EEO) laws. The Age Discrimination in Employment Act (ADEA) of 1967 protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. This Act is codified under 29 C.F.R Part 1625: Age Discrimination in Employment Act which can be Viewed in its entirely at EEOC’s site at http://www.access.gpo.gov/nara/cfr/waisidx_02/29cfr1625_02.html. Some of the nuances of the Act which could result in unwanted litigation are as follows:

 

1. Although the Act does not specifically prohibit asking an applicant what his or her age might be, that line of inquiry may have the affect of discouraging older workers (and sometimes younger workers too) from applying to the job.  Such inquiries could then trigger and inquiry or even a lawsuit to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA. Attorneys at Employment Law Team ™ can assist employers and employees in Orange County, Los Angeles County, Riverside County, San Bernardino County, San Diego County look into such claims to  ensure full compliance with the Act.
2. The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the normal operation of the business. Employers should contact the Employment Law team ™before posting their job notices if they believe that such requirement is needed.
3. One of the most confusing aspects of the ADEA is the requirements dealing with a terminated of laid off employees decision to sign a severance package or a release. An employer may ask an employee to waive his/her rights or claims under the ADEA ( waiver of ADEA rights) either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must:
   
   • be in writing and be understandable;
   • specifically refer to ADEA rights or claims;
   • not waive rights or claims that may arise in the future;
   • be in exchange for valuable consideration;
   • advise the individual in writing to consult an attorney before signing the waiver; and
   • provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.

If you are offered a release which could waive your ADEA rights or you are an employer desiring to draft such release 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 ADEA.

Disability And Employment (Disability Discrimination)

Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA's nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. EEOC is again given task of enforcing these laws should an individual not desire to hire his/her own private counsel. EECOC’s site at http://www.eeoc.gov/policy/ada.html has the text of the law as it is currently on the books.

An individual with a disability is considered to be a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment ( perceived disability.)

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.

Reasonable accommodation may include, but is not limited to:

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
• Job restructuring, modifying work schedules, reassignment to a vacant position;
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

Some of the nuances of the Act which could result in unwanted litigation are as follows:

1. Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the.
2. Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA. Such actions will most likely subject the employer to liability for retaliatory conduct.

If you feel that you were denied a position due to your actual or perceived disability, or due to your refusal to answer questions about the same in an application, or have not been offered reasonable accommodation in light of your disability or you are an employer with questions about how you should treat a particular employee or general polices in Orange County, Los Angeles County, Riverside County, San Bernardino County, Alameda county, Ventura county or San Diego County call 888-529-2188 for a free consultation with an Employment Law Team, www.law4545.com, attorney well versed in ADA.

Sex Based Discrimination/Harassment

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of sex as well as race, color, national origin, and religion. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. A copy of the Title VII statue can be viewed on EEOC’s site at http://www.eeoc.gov/policy/vii.html.
Title VII makes it is unlawful to discriminate against any employee or applicant for employment because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex. Title VII prohibits both intentional discrimination as well as neutral job policies that are not job related and disproportionately exclude individuals on the basis of sex. Title VII also covers compensation discrimination on the basis of sex.

Title VII further covers sexual harassment and pregnancy based discrimination. Sexual harassment is a form of sex discrimination that violates Title VII.

Sexual Harassment:

Unwelcome sexual advances, requests for sexual favors (quid pro quo), and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser's conduct must be unwelcome.

In order to maintain a claim it is generally held that the victim should use any employer complaint mechanism or grievance system available.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are well advised to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains. For more information about what constitues sexual harassment or hostile work environment please visit EEOC's website at: http://www.eeoc.gov/facts/fs-sex.html

Pregnancy Discrimination:

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Like sex discrimination protections of these statue apply to the employees of employers with 15 or more employees or employees of state, local nd federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

Title VII's pregnancy-related protections include:

Hiring.  An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers.

Pregnancy and Maternity Leave. An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same.

Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

Fringe Benefits.  If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions. Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

As with other statues, it is also unlawful for any employer to retaliate against an employee for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

If you feel that you were denied a position due to your sex or sexual orientation or that you are being sexually harassed, discriminated because of your sex or mistreated due to your pregnancy  or have been retaliated for whistle blowing or filing or supporting a sexual discrimination or  sexual harassment claim or a claim of discrimination due to your pregnancy or age  or you are an employer with questions about how you should treat a particular employee or general interpretation of Title VII  in Orange County, Los Angeles County, Riverside County, San Bernardino County, Alameda county, Ventura county or San Diego County call 877-529-4545 for a free consultation with an Employment Law Team, www.law4545.com, attorney well versed in Title VII.  Our affiliated firm Criminal Defense Team, www.law2188.com can also assist our clients with issues related to criminal law.

Race/Religion Based Claims (Racial, Ethnic, Religious Discrimination)

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Equal employment opportunity cannot be denied any person because of his/her racial group or perceived racial group, his/her race-linked characteristics (e.g., hair texture, color, facial features), because of his/her marriage to or association with someone of a particular race or color or because of that person’s religion. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII's prohibitions apply regardless of whether the discrimination is directed at whites, Asians, blacks, Latinos, Middle Easterners, or persons of any other race, color, or ethnicity.   Title VII also prohibits denying an employee or an applicant opportunities or discriminating against him/her due to her/his religion.

It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race, religion or color and that are not related to the job and the needs of the business. Employers should adopt "best practices" to reduce the likelihood of discrimination and to address impediments to equal employment opportunity.

Specifically and in relation to an employee or applicant's religion under Title VII:

• Employers may not treat employees or applicants more or less favorably because of their religious beliefs or practices - except to the extent a religious accommodation is warranted. For example, an employer may not refuse to hire individuals of a certain religion, may not impose stricter promotion requirements for persons of a certain religion, and may not impose more or different work requirements on an employee because of that employee's religious beliefs or practices.
• Employees cannot be forced to participate -- or not participate -- in a religious activity as a condition of employment.
• Employers must reasonably accommodate employees' sincerely held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. Examples of reasonable accommodation could include: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, modification of grooming requirements and other workplace practices, policies and/or procedures.
• An employer is not required to accommodate an employee's religious beliefs and practices if doing so would impose an undue hardship on the employers' legitimate business interests. Such an hardship can be established if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.
• Employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer. Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency.
• Employers must take steps to prevent religious harassment of their employees. An employer can reduce the chance that employees will engage unlawful religious harassment by implementing an anti-harassment policy and having an effective procedure for reporting, investigating and correcting harassing conduct.

It is also unlawful to retaliate against an individual for opposing or complaining of employment practices that discriminate based on religion or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Initiating Claims

An aggrieved employee can either file his/her claim with the EEOC and ask that agency to pursue the claim for him/her, or hire a private attorney to represent him/her after filing of the claim. There are strict timelines as to when the claim needs to be filed in order to avoid having the claim denied for being untimely.  Employees are encouraged to contact the attorneys at the Employment Law Team ™ or EEOC so as to protect their rights. Following is the link to EEOC which discusses the claim filing procedure: http://www.eeoc.gov/charge/overview_charge_filing.html.

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

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.