Areas of Practice

California’s employment laws are extensive, ever-changing, and complex. Below is a very brief overview and basic summary of some employment issues that we commonly litigate and about which we provide advice and counseling. If you have an employment law issue or problem, please contact Whang Law Firm, P.C. to arrange an appointment.

Note: The below is informational only. California law is subject to constant changes by California courts and lawmakers, and the below does not constitute legal advice or the existence of an attorney-client relationship.

Discrimination

California law requires that employers adhere to a policy of equal employment opportunity for all. Generally, companies may not discriminate against (meaning, take an action against – such as a termination or demotion) applicants or employees on the basis of race, color, sex, gender, religion, creed, pregnancy, national origin, age, marital status, veteran status, physical or mental disability, sexual orientation, or other categories prohibited by law.

Equal employment opportunity must be extended to all persons in all aspects of the employer-employee relationship, including recruitment, testing/selection, hiring, training, promotion, compensation, transfer, discipline, layoff, and termination.

Harassment

California state and federal laws require employers to provide a work environment free from harassment based on race, sex (“sexual harassment”), gender, age, disability, national origin, religion, sexual orientation, pregnancy, or any other protected basis.

Companies must not tolerate such harassment of their employees, and also must protect employees from harassment by non-employees in the workplace of which they become aware, such as harassment by the company’s clients, contractors, vendors, guests, etc.

Some examples of harassment may include, but are not limited to, slurs, racial jokes, sexual remarks and other offensive and unwelcome conduct (such as touching or the display of sexually or racially offensive material) that interferes with an employee’s work performance or creates a hostile or abusive work environment. Basing an employment decision (such as hiring, promotion, retention or compensation) on whether an employee accepts sexual advances can also be a form of sexual harassment.

Sexual harassment involves unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. It encompasses many forms of offensive behavior, including gender-based harassment of a person of the same sex as the harasser. This is a partial list of examples of possible sexual harassment:

Unwanted sexual advances.
Offering employment benefits in exchange for sexual favors.
Making or threatening reprisals after a negative response to sexual advances.
Visual conduct that includes leering, making sexual gestures or displaying of sexually suggestive objects or pictures, cartoons or posters.
Verbal conduct that includes making or using derogatory comments, epithets, slurs or jokes.
Verbal sexual advances or propositions.
Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, or suggestive or obscene letters, notes or invitations.
Physical conduct that includes touching, assaulting or impeding or blocking movements.

Retaliation/Whistleblower

In the absence of a written employment agreement for a specified period of time, employment in California is presumed to be at will (meaning, employment can be terminated by either party with or without a reason, and with or without prior notice). However, this does not mean that an employer can simply terminate an employee for any reason it desires.

Both federal and California law prohibits employers from taking adverse employment actions against an employee for making a protected complaint about something that the employee believes in good faith to be unlawful. The employee complaint may raise issues such as non-compliance with a law or regulation, unlawful discrimination or harassment, violations of wage and hour laws, or otherwise opposing unlawful practices at work. In addition to certain complaints, employees also are protected from adverse employment actions for taking protected leaves of absence, participating in a workplace investigation, or other protected activities.

Examples of adverse employment actions that may give rise to a retaliation or wrongful termination claim include termination, demotion, refusal to hire, denial of promotion, threats, unjustified negative evaluations, increased surveillance, or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Wage & Hour Laws

California’s wage and hour and leave laws are far too extensive to describe in full. However, below are a few common topics relevant to most employees and employers.

Exempt Status: Generally, “exempt” employees are qualifying executive, administrative, professional, or certain computer professional employees who meet certain key requirements. Properly classified exempt employees are exempt from a wide range of wage and hour laws. For instance, they are not eligible for overtime pay, minimum wage, and meal and rest periods.
As you can imagine, whether an employee or group of employees is truly “exempt” is a hot-button issue, because the consequences for the employer and employee are significant. Each major exemption has certain, specific requirements set forth in the law. They are too numerous and complex to mention here, but common to each exemption is that the employee, in order to be truly exempt, must spend over half of his or her time exercising discretion and independent judgment in their jobs. Even if an employee has a job title like “manager,” what matters for purposes of exemption analysis is what the employee actually does. If his or her job duties do not include enough discretion, then it is unlikely that an exemption will apply. Exempt classification is one of the most common issues about which we advise our clients.

Overtime: Non-exempt employees must be paid overtime. In California, this means that non-exempt employees must be paid at the rate of time-and-a-half their regular hourly rate of pay for hours worked over 8 and up to and including 12 in a workday, for hours worked over 40 in a workweek, and for the first 8 hours on the 7th consecutive day of work in a workweek. Non-exempt employees must also be paid two times their regular rate of pay (“double-time”) for hours worked over 12 in one workday and for hours worked over 8 on the 7th consecutive workday in a workweek.

Meal and Rest Periods: For every four hours worked, non-exempt employees are entitled to a 10-minute rest period. Employees are paid for these breaks despite the fact that they are not to be performing any job duties during the break. Non-exempt employees are also entitled to a 30-minute, uninterrupted meal period during a workday in excess of five hours.
Employees who work over 10 hours in a workday are entitled to two 30-minute, uninterrupted meal periods. Employees do not need to be paid during their meal period(s), but in most cases, they must be relieved of all duty and allowed to leave the premises. Further, employees who work less than six hours in a day may waive the meal period. Employees who are not “provided” a rest break and/or an uninterrupted meal period must be paid one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.

Expense Reimbursements: Pursuant to California Labor Code Section 2802, employers must reimburse employees for necessary expenses or losses incurred in direct consequence of their duties. This includes all reasonable expenses incurred as a result of an employee’s employment, such as mileage, supplies, and cell phone usage.

Leaves of Absence

California and federal laws provide numerous kinds of leaves of absence for employees. These include leaves specified by the Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”). The FMLA and CFRA apply only to employers who employ a minimum number of part-time or full-time employees. To be eligible, an employee must have more than 12 months of service with the employer and have worked at least 1,250 hours for that employer in the 12-month period before the leave begins. Qualifying reasons for CFRA or FMLA leave include: to bond with an adopted or foster child or to bond with a newborn; to care for a parent, spouse, or child with a serious health condition; or for the employee’s own serious health condition. Full-time employees may take leave of up to 12 work weeks in a 12-month period. After the leave is over, in most cases, employees are guaranteed a return to the same or comparable position.

In addition, California law makes it an unlawful for employers to refuse to allow an employee disabled by pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months.

Finally, employers must provide a reasonable accommodation to employees who suffer from a qualifying disability, but are able to perform the essential functions of their jobs with or without that reasonable accommodation. Employers have a duty to engage in an interactive process with their employees to discover what those reasonable accommodations may be. Many times, but not always, it may be deemed a reasonable accommodation to grant a period of time off to an employee, regardless of whether another law (such as the FMLA) provides for specific time off.

Generally, the requirements of the various leave laws (only a few of which are discussed here), and the interplay between them, are complex and must be understood fully before employers make decisions on granting or denying employee time off.