Employment Law Questions

Q.  Is there anyway I can find out who gave me a bad reference to a potential employer?

A. It’s not illegal to provide a “bad reference,” provided that reference was solicited by a prospective employer and the reference consists only of statements of opinion or factual statements which the reference provider believes in good faith to be true. Such statements are protected by a qualified privilege pursuant to Civil Code 47(c).

Assuming this was an UNSOLICITED effort to interfere with your employment prospects, you may have a claim under Labor Code 1050. Typically, you would sue your former employer, since the individual who provided the reference was operating in their official capacity at that time. Once you file the lawsuit, you can subpoena the prospective employer and ask them under oath who at your old company made the false statements. They will be required to provide truthful answers at that time.

Again, though, if this was a reference which the prospective employer solicited, the reference provider is protected by a qualified privilege from claims of defamation unless the statements were factually untrue and made with malice. Under this circumstance, you would not typically have any basis to sue.

 

Q. Can an employer deduct a half day pay if a salaried employee and I goes home sick early? How about requiring an unpaid day off?

A. First of all, playing an employee a salary is not a valid excuse to deny overtime. An employer may only pay a flat salary regardless of the number of hours an employee works if the employee’s position is properly classified as EXEMPT. See here for an incomplete summary of the common exemptions: http://www.dir.ca.gov/dlse/faq_overtimeexemptio…

If you are not an exempt employee, the law presumes that your salary compensates you only for a standard 40 hour work week. Hours worked in excess of that must be paid, and paid at an overtime right.

With regard to deducting from your salary, if you are overtime exempt and paid a flat salary your employer may NOT deduct from your wages for a partial day absence or for a business closure of less than one week (though FULL day absences for personal/health reasons and business closures of more than one week may lawfully form the basis for pro rata salary deduction). To deduct from an employee’s wages, or to require an employee to use PTO to “pay themselves” for a partial day absence or single day business closure, amounts to an unlawful labor practice.

It sounds like your employer may be violating several labor laws, and so an individual in your circumstance would be extremely well served to consult with a local attorney to determine your rights. This is a complicated area and it helps to get the advice of a knowledgeable professional. Most attorneys offer free consultations, so there is really nothing to lose from looking into this further and exploring your options.

 

Q.  Can an employer fire you if you’re not available on certain days?  I’m unavailable on Sundays cause I have to go to church with my family. Now they are coming up with this availability thing, that if you request a certain day to have off permanently, and if it gets denied by the department manager you can bring it to the attention to the store General Manager. If it gets denied by the GM, you will be terminated 30 days prior to the denial. Can they do that?

A.  Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” the religious practices of employees, unless doing so would create an undue hardship for the employer. To the extent that an employee cannot work on Sunday because they must attend church, their employer would ordinarily be required to accommodate that religious practice, unless doing so would impose the requisite degree of hardship.

 

Q. I worked for a company that is headquartered in Atlanta, GA. I worked for them from home in California. I reside in Los Angeles county. I quit the job after working for 3 months for them. I signed a long contract with them for employment. Question is can I start the same type of business? They had me sign a non-compete..

A. California courts refuse to enforce most non-compete agreements, even with choice of law provisions that specify the law of another state shall apply. The danger is that your out-of-state employer will seek and injunction and damages against you in their home state, then attempt to enforce that judgment in CA. For an illustration of how messy this can get, see Advanced Bionics Corp. v. Medtronic.

The law is far from cut-and-dry on this subject. Therefore, if you intend to breach your non-compete agreement, you should first obtain the confidential and fact-specific advice of a local attorney, particularly if you are investing substantial capital into your new business enterprise.

 

Q. I think my employer is trying to make me quit after I was assaulted on site by another employee

If you are an at-will employee, you can likely be fired, even if you did not instigate the fight–being hit does not somehow make you immune from termination.

If you can prove that a reasonable person genuinely desirous of remaining employed would have been compelled to quit under similar circumstances, then you may be able to collect UI benefits. This, in turn, will require you to communicate your safety concerns with your employer (in writing) and give your employer a reasonable opportunity to address the situation.

Q.  I work a Mon-Fri split shift, first shift is 6am-9am and then second shift is 3:30pm-6:30pm. I only get 6 hours per day. When I took the job I was under the impression it would be a 40 hour a week full time job. I was aware of the split shifts but not the specifics. 10 hours a week is pretty significant so I’m evaluating my options. I do make $14 an hour with an option to work a 6th day, but I also have a wife and two young children. The 30 mile commute TWICE a day is really my biggest concern 

Employers are free to schedule their employees in whatever manner suits the needs of the business, provided they pay at least minimum wage plus applicable overtime for all hours worked. There is nothing inherently unlawful about a split shift, even if you were not told about the need to work this particular schedule when you accepted the job. Therefore, I’m afraid your options are to accept the hours being offered to you, attempt to negotiate something better, or find alternative employment with a schedule that is more convenient. I am sorry.

 

Q. I let an intern perform some educational tasks on for us. She wasn’t great. I did not officially release her from duties until yesterday. Now she is claiming she was an employee and we let her go on a specific date. Both claims are false. She’s sent us a demand letter for a small claims amount and in same letter threatens to fraudulently raise this amount and sue us for even more, if I don’t pay “immediately”. Intern is paid, and does not meet any FLSA requirements. We can prove she was neither a freelancer or real employee. We’re happy to pay her ahead of when we agreed in writing to, but I’m reading around and have learned her letter may constitute misdemeanor theft by extortion.

A. The fact you disagree with the legal positions this former intern has taken does not make her demand for wages and penalties “extortionate.” By this logic, any disputed claim for owed wages and penalties would potentially give rise to criminal charges against the claimant. The chilling effect on wage claims would be enormous, since few workers would be willing to take the risk of criminal prosecution to collect what they believe they are owed.

 

Q. If I start a company in the same field as my employer, what legalities do I need to be aware of? Can I lose the company?

A. Strongly consider retaining a local attorney to guide you through this process. Their advice will be invaluable, not just in regard to the concerns you have raised here, but also in regard to the many legal issues you will encounter in the course of setting up and operating your new business.

The most common subject of dispute when an employee branches off from their employer is whether the employee has misappropriated trade secrets. California Civil Code Sec. 3426.1(d) defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

So long as you do not employ trade secrets to your benefit, California law zealously protects your right to compete. In fact, Business & Professions Code 16600 voids most non-compete agreements, so even if you signed one it is unlikely to be enforceable.

There are likely other legal issues to consider, but a more detailed understanding of the facts would be necessary to provide competent advice. Therefore, as noted above, it would be in your best interest to retain local counsel.

 

Q. My boss was upset that I was not able to leave my kids behind and assist with a late night project. He then referred to me as being “that kind of guy” that let’s him wife make all the decisions and mentioned that the business relationship may not work anymore. I mentioned this issue to my Sales Manager and he mentioned to me that I would need to make the best of it as boss has that type of reputation.

A.  No law generally prohibits employers from being rude, disrespectful or mean. Such hostilities only become actionable if they relate directly to your race, religion, gender, or some other legally protected trait. Even then, you must demonstrate that the harassment is either “severe or pervasive,” which the single comment you describe is not.

You may wish to consider finding another job where you are treated with more respect. Most likely, that is your only recourse under the circumstances.

 

Q.   I injured my foot. The 1st day after injury i was allowed to sit on a chair. Now they took they chair away. Can i do anything?

A.   California’s Fair Employment & Housing Act requires employers to reasonably accommodate employees suffering from medical conditions that impair a major life function. As walking and standing are major life functions, your employer would have an obligation to accommodate your need to sit to the extent that such accommodation does not impose undue hardship on the company.

Since you indicate that you are able to perform your job “just fine” sitting down, your employer most likely has an obligation to accommodate your need to sit while you work until you recover. You can make the request for accommodations yourself, or you can retain a local employment law attorney to write a letter on your behalf.

 

Q. Can an employer access a personal e-mail account?  I sometimes check my personal e-mail from my work computer I just found out my employer had accessed my personal e-mail account and was looking in my home computer.

A.  First, you should NEVER assume that anything you do on a company-issued computer is private.

As far as your specific question is concerned, the answer is complicated and depends on a number of variables. Did your employer somehow obtain your password and log into your account at a later point in time? Did they simply intercept a communication through the company’s outgoing servers? Were you aware that your work computer was being monitored? What was the nature of the intercepted communication? Did the interception result in your termination or other adverse employment action?

Consult with a local employment law attorney if this is something that is important enough for you to justify spending time and money on litigation. Good luck.

 

Q. Employment discrimination because not having a degree?

A.  A wise employer will see the value in experience, but no law compels them to. In the end, it’s their business and they can evaluate qualifications any virtually any manner they choose.

 

Q.  My husband suffered a stroke over a year ago. His return to work is indefinite. Now his employer has terminated his employment.  Is terminating one’s employment due to a medical condition legal? I was under the impression that an employee cannot be terminated do to medical conditions. He wasn’t offered any type of severance package and because his medical condition needs indefinite time off this was what they told him in a letter. His employment was severed as of July 19th but we received the letter on July 26th. Should they have offered him some type of severance package? He wasn’t getting medical coverage through his employer and has had no pay from them in over a year

A.   I am very sorry to hear about your husband’s stroke. While the law does afford some protection to employees suffering from disabling medical conditions, that protection is not absolute.

The Family Medical Leave Act provides up to 12 weeks of protected job leave to qualifying employees, and the Americans With Disabilities Act requires employers to “reasonably accommodate” disabled employees, sometimes by allowing them time off work.

However, no law indefinitely protects employees on medical leave, and since you indicate your husband’s stroke occurred one year ago, I take that to mean he has been off work for at least that long and has no probable date of return. While further inquiry into the specific facts of your husband’s termination is necessary (and should be undertaken by a local employment law attorney in a confidential setting), this may be an unfortunate case in which no further legal protections apply. I am very sorry.

 

Q. Do I have any case against a former employer for treating employees extremely poorly?

I left a well known restaurant because I wasn’t getting scheduled for any shifts. I was told that I wouldn’t be scheduled until I attended a wine class. I never went because they only offered it on days when I was in school and we were never scheduled, we just had to show up for the class. This place also NEVER gave us a fifteen minute paid break and often failed to give us a lunch break. When we had a lunch break, we had to eat in the backroom which is where all the cleaning chemicals were kept as well as a dumpster. It was also filled with insects. They also gave employees crap whenever they called out. They even refused to send me home after I had vomited several times in the back.

There are numerous other things that I don’t have room to mention. Do I have any sort of a case?

A. It’s not illegal to deny shifts or to generally treat employees “poorly,” unless the motivation for so doing is a legally protected trait, such as the affected employee’s race or religion. However, it is illegal to deny non-exempt employees rest and lunch breaks, and an individual in your circumstance may very well have a claim for penalties against your former employer arising from these practices. Accordingly, you’d be well served to contact a local employment law attorney immediately. Good luck.

 

Q. Can a employer eliminate my position and lay me off and then recruit for the same position under a different job title?  I was told they did not have enough work to support a GM position, I then found out from a recruiter that they are now interviewing for a Operations Manager position for the same pay and job description. Job was also posted on Monster under confidential while I was still employed at the company.

A. Employers don’t need to be truthful with regard to the reason for termination because the law imposes no inherent obligation of “fairness” in employment relationships. As an at will employee, you can be fired for an unfair reason, no reason, or a made up reason. Perhaps your employer was trying to let you go gently.

 

Q.  If my position is eliminated, but the company offers me a 1099′d position, can I claim unemployment?

A.  UI claimants forfeit their right to benefits if they refuse suitable work, and a 1099 position at your former place of employment is likely “suitable.”

The bigger question is whether you conversion to contractor status is itself in conformity with the law. Employers cannot arbitrarily convert employees to contractors. The designation is a function of the degree of control the employer exercises over the work performed, and unless the working relationship substantially changes upon conversion to contractor status, courts will find it to be improper.

Mislcassification is a very big deal because a large number of labor rights apply only to employees. Only employees are entitled to minimum wage for all hours worked, overtime, the timely payment of wages, final wages, workers compensation insurance, and much more.

Consultation with a local employment law attorney is strongly advised. You may not have the right to turn down suitable work and collect UI benefits, but you may have a number of other rights and remedies at your disposal arising from prior misclassification.

 

Q.  Do I have a case against my employer? My boss is a CEO of a public company. He is generally quite verbally abusive. Today while in my office yelling at me, he told me to “stop using (another more senior person in the company) as a w et nurs e” when I told him I was waiting on feedback from this other senior person before I took action on a topic. I then told him that he had crossed the line of professionalism witj that comment. What I got in return was “you want to see what crossing the line looks like….?” and on and on. Do I have a complaint? What action can I take beyond resigning?

A.   Rude and offensive behavior in the workplace will be actionable only if such behavior relates to a legally protected trait, such as race or religion. So, while it would be illegal to yell racial slurs, there is no general prohibition on being mean.

You may wish to raise the issue of your treatment with HR, but I wouldn’t expect a positive outcome, since the perpetrator of your verbal abuse is the CEO of the company. Unfortunately, this may be a situation in which there is no legal or practical recourse, aside from quitting or taking it on the chin.

 

Q.  I quit my job with a CA employer. I had many business expenses when I left. I have turned in all of the receipts and am still waiting to be paid. Is there a law in California that limits the amount of time an employer has to pay expenses after you have quit? Also, is there a time limit on how old the expenses can be like 3 or 4 years old?

A.  California law imposes strict regulations on an employer’s obligation to pay final wages (See Labor Code §§ 201-203). However, CA courts have specifically held those same rules do not apply to expense reimbursements, and no other law imposes a specific time frame on repayment. Employers are generally obligated to repay employees within a “reasonable” period of time, and are free to establish internal policies with regard to reimbursements.

The statute of limitations for reimbursement is typically three years, and you can pursue your claim by filing a wage complaint with the Department of Labor Standards Enforcement.

 

Q.  Can I withhold a paycheck from an x-employee that owes me money?  I run a care facility for adults with developmental disabilities. We hire our staff for the home as private contractors with a 1099, as all private care facilities in California do. We recently had a staff quit in lieu of being fired, after she provided terrible care for our clients, incurred write ups and then spent her work hours on our phone calling long distance. She was about to be let go but decided to quit the day the news was to be broke to her. She ran up close to 800 dollars in long distance calls in three months, her final check is for 600. She is demanding her check and says she will pay us back latter, but we have decided to deduct the amount owed to us for the phone bill out of the check. Is it ok to do this?

A. You may be setting yourself up for a load of trouble. Regardless of whether it is common practice among private care facilities to hire their staff as independent contractors, this is most likely an impermissible labor practice.

A plumber is an independent contractor. On the other hand, someone who reports to a designated work site every day, who isn’t running their own separate business, who has set hours and a set schedule and who is closely supervised (as I am imagining staff at a private care facility likely would be), is without question an employee. For more information on the distinction, see IRS Form SS-8 http://www.irs.gov/pub/irs-pdf/fss8.pdf

While there is no law which prohibits an employer from withholding pay to offset damages caused by an independent contractor, CA Labor Code 201 specifically requires the prompt payment of final wages to employees, regardless of what the employee may “owe.” A vast array of other protections apply only to employees, such as the right to minimum wage, overtime, unemployment insurance, workers compensation insurance, the timely payment of wages, and much more.

By refusing a likely-misclassified contractor’s final wages, you are practically inviting an audit into the classification of your entire staff. The result could be disastrous, as recent changes in the law make willful misclassification a criminal offense. Fines and penalties can be imposed. Claims for unpaid wages or overtime can be brought.

I say these things not to scare you, but to highlight the reality of what is at stake by challenging this individual’s right to their final paycheck. You are stirring a hornet’s nest that you do not want to wake up. If I were you (and I’m not, so you are free to disregard what I’m saying), I would not only pay this individual, I would also immediately consult with a local employment law attorney to confirm the proper classification for my staff and, if necessary, to institute immediate changes in classification.

 

Q.  Is it legal to be fired without ever being given any warnings and then have your clients told that you were fired?

A. I’m very sorry to hear about this. Unfortunately, absent a contract that guarantees your employment for a specified term, employers are free to fire their employees for just about any non-discriminatory reason, regardless of whether the basis is fair or even true. Your employer is free to believe false allegations and respond accordingly. Your employer is also free to tell others why you were fired–this does not constitute defamation because they are telling the truth, which is that you were involuntarily let go.

If you had any claim it would be one for defamation against the client who made the false allegations. This won’t get you your job back but may allow you to recover damages in the form of lost wages and harm to your reputation. Of course, you will be tasked with the burden of proving that these allegations were actually false, and depending on specifically what you were accused of (you don’t say) that may be hard to show. This, nonetheless, would typically be your sole recourse under the circumstances.

 

Q. Can my employer stop me from discussing work issues?  My employer recently announced reassignments with huge pay cuts for over 100 employees. Some of us were discussing at our desks and got reprimanded. Can they stop us from talking about it? What about during our breaks or lunches? We were talking about filing a lawsuit against the company. Is this retaliation? Thanks.

A. Generally speaking, it is illegal for an employer to prohibit employees from discussing their pay with other employees. This prohibition is rooted in the National Labor Relations Act, which has been codified into federal law.

The NLRA permits all employees, regardless of whether they are in a union, to engage in “concerted activity for mutual aid and protection.” Courts have uniformly held that discussion of wages falls within the meaning of this law. Therefore, any efforts to curtail an employee’s right to discuss their salary with other employees would typically constitute a violation of the NLRA, and any adverse employment action taken against employees for discussing their pay would constitute unlawful retaliation.

 

Q. Can an employer terminate me if I refuse to sign a non-disclosure and non-compete agreement?  I have been with my current employer for 2 years now, in California. Just recently (last week) I was asked/forced to sign a non-disclosure and non-compete agreement (this is the first NDA, NCA I have ever been given during my employ). I requested more time, beyond the 1 week deadline and they refused, well they gave me until today to sign or face termination.

One of the provisions in the agreement affects my future employment as it precludes me from being employed within the same area of employment I’m currently in, should I leave my current employer. This is why I’m refusing to sign the agreement, but I don’t want to lose my job either.

A.  Restrictions on competition are generally unenforceable in the state of California. Business and Professions Code section 16600 states: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

There are some narrow exceptions involving the sale of a business (to protect people who purchase a business from having the previous owner turn around and immediately compete with them) and the disclosure of trade secrets. Here is the relevant law for your reference: http://www.leginfo.ca.gov/cgi-bin/displaycode?s…

Since non-competes are invalid in the state of California, it doesn’t matter whether you sign one–provided you do so in the state of California, it will generally be void and unenforceable.

NDAs are generally legal, and an employer can condition continued employment on the signing of an NDA, assuming employment is “at will.”

Keep in mind the above is not legal advice. I would strongly recommend that you pay an attorney to review the specifics of your proposed agreements to determine your rights.

 

Q.  I might be fired (California) for conflict of interest because of allegations made to my manager about me

A.  Absent an agreement to the contrary, employment in the state of California is “at will.” This means employees can be terminated for any reason whatsoever, regardless of whether the basis if fair or reasonable.

Termination for discriminatory reasons is illegal, notwithstanding the doctrine of “at will” employment. However, the law only recognizes claims for discrimination if adverse employment action is premised on an employee’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. The law does not recognize a claim for discrimination premised on two different employees with “conflicts of interest” being treated differently. Therefore, termination under the circumstances you describe would ordinarily be legal.

 

Q.  I started a position with a promise to pay one hourly wage, and received a much less hourly pay – do I have any recourse?

A.  Labor Code 971 makes it a misdemeanor for any employer to “influence, persuade, or engage any person to change from one place to another . . . .through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: (a) The kind, character, or existence of such work; (b) The length of time such work will last, or the COMPENSATION therefor.” (Emphasis added)

Labor Code 972 goes on to state, “In addition to such criminal penalty, any person, or agent or officer thereof who violates any provision of Section 970 is liable to the party aggrieved, in a civil action, for double damages resulting from such misrepresentations.”

If your current employer made representations concerning your rate of compensation that served as inducement for you to leave your former job, you may have a claim for damages pursuant to the aforementioned statutes.

More information is needed, but this is certainly something worth exploring with a local employment law attorney in more detail.