LAW AND THE WORKPLACE
10 FACTS THAT MIGHT SURPRISE YOU
1. A termination that is unfair is not necessarily illegal. Employers can usually fire employees for any reason. In most circumstances, employers can terminate employment “at will;” they are not even required by law to give any reason at all for a discharge. However, there are exceptions to the “at will” rule. It is illegal for your employer to terminate you:
because of your race, sex, color, national origin, religion, gender, sexual orientation, age or disability (including pregnancy), medical condition, language (or accent), or marital status;
- in violation of a contract (such as a union agreement). There may be an “implied contract” if you have a reasonable expectation of continued employment (usually based on lengthy employment, continued promotions and positive performance evaluations);
- in retaliation for enforcing your own legal rights (such as filing a claim for unpaid wages);
- because you have reported your employer to a government agency or to the police;
2. You have the right to see your personnel file. Private employees have the right to inspect their personnel files to see what information their files contain about them and their job performance (California Labor Code Section 1198.5). Former employees also have the right to see their personnel files for a limited period of time following the employment (California Labor Commissioner Management Memorandum 76-2). An employer must allow the employee to inspect the file within a “reasonable” amount of time after the employee asks to see it. Private employees also have the right to a photocopy of any document that has their signature (California Labor Code Section 432). It is also important to know that you can add your own documents to your personnel file, which may be a good idea if you disagree with some of the information in the file.
Different laws provide similar rights to most public employees.
3. You may be entitled to penalty wages if your final wages are late. If you are fired, your employer must pay all wages due to you immediately upon termination (California Labor Code Section 201). If you quit, and gave your employer 72 hours of notice, you are entitled on your last day to all wages due. If you quit with less than 72 hours of notice, your wages are due within 72 hours after you notified your employer that you were quitting (California Labor Code Section 202).
If your employer willfully refuses to pay you within these time limits, your employer is subject to penalties for each day that your wages are late, for up to 30 days. Claims for late final pay are filed with the “Labor Commissioner” (California Department of Industrial Relations, Division of Labor Standards Enforcement).
4. “Use it or lose it” vacation policies are illegal. You do not forfeit unused vacation when your employment ends. When you are terminated or you quit a job, you are entitled to your unused vacation pay, just like unpaid wages (California Labor Code Section 227.3). Although an employer might not allow you to actually take vacation until you’ve worked for a certain amount of time, you may be “earning” vacation pay from your first day of work. Your employer, however, may impose a “reasonable” cap on the total amount of vacation that an employee can accrue over time.
5. A former employer cannot lie about you or your work when giving a reference. If you apply for a job and your former employer is contacted for a reference, that employer cannot knowinglygive false information about your work performance to try to prevent you from getting a new job. It is legal, however, for your former employer to provide subjective assessments of your work performance (such as “he was unreliable”) or say things which, although they may be untrue, the former employer reasonably believes are true (California California Labor Code Section 1050).
6. Many workers are entitled to 12 weeks of unpaid medical leave, with the right to return to work. Under family/medical leave laws, you are entitled to 12 weeks of unpaid leave from work if you, your children, your parents or your spouse have a “serious health condition” (including a serioushealth condition caused by domestic violence).During your leave, your employer must maintain your health benefits and must reinstate you to the same or equivalent position when you return. Toqualify, you must meet the following criteria:
- your employer must have 50 employees within a 75-mile radius of your worksite;
- you have worked at your job for at least one year;
- you have worked at least 1,250 hours during the previous 12 months;
if the leave is for a “serious health condition, ” the condition must last for more than three days and involve continuing treatment by a health care provider.
7. Having a "debt" to your employer deducted from your paycheck is often illegal. It is illegal for an employer to deduct money from an employee's paycheck to offset an inadvertenterror, cash shortage, or breakage (in other words, a loss caused a simple mistake or accident). To make such a deduction, the employer must show the error, cash shortage, or breakage was caused by the employee's dishonesty, willful misconduct or gross negligence. It is also illegal, in most occupations, for an employer to deduct the cost of a uniform or tools (exceptions include tools or equipment used in certain trades or crafts, and implements used by barbers, hair stylists and manicurists).
Even if an employer is legally entitled to payment of a debt from an employee, the employer may still be prohibited from deducting the debt from a paycheck.
8. You may be an “employee” even if you are called an “independent contractor.” Your designation as an “employee” or as an “independent contractor” is determined by how you do your work, not by your job title. If your employer has classified you as an employee, you are eligible for unemployment insurance, workers’ compensation, health/safety protection by Cal/OSHA, and protection against discrimination. If you are classified as an independent contractor, however, you do not have these protections.
What is the difference between an employee and an independent contractor? There is no one simple test; it is necessary to weigh a number of factors. Answers of“yes” to the following questions weigh make it more likely you should be an independent contractor; “no” answers weigh make it more likely you should be designated as an employee:
- Do you supply the materials, tools, and/or place of work?
- Does your occupation require a lot of skill? Is it usually done without supervision?
- Are you employed for a short amount of time?
- re you paid by the job? (as opposed to payment by the hour, week, or year)
- Is your work outside the regular business which is paying you? (For example, a painter at a school is more likely to be an independent contractor than a teacher.)
- Is there an opportunity for profit or loss depending on your managerial skill?
- Do you believe you are creating an independent contractor relationship?
9. Whether you should receive overtime pay depends on what you do, not on your job title. As “exempt” employees do not receive overtime pay, it may be in an employer’s interest toclassify a worker as exempt. To be legally exempt from overtime pay, however, employees must fit in one of the following categories:
- Executive or Administrative employeesare exempt from overtime pay only if, at least 50% of the time, they perform intellectual, managerial, or creative work which requires independent judgment on matters of significance.
- Professional employees are exempt from overtime pay only if they are state licensed or certified in a profession (such as law, accounting, teaching) orare in what is commonly recognized as a “learned” or “artistic” profession (such as editor or musician).
- Executive employeesare exempt from overtime pay only if, at least 50% of the time, they are involved in managerial activities outside the activities of regular employees; they usually direct the work of 2 or more full time employees; they can hire or fire workers;andregularly use your discretion on significant matters.
If your title is “Executive File Administrator, ” but your duties involve primarily filing and copying, you should not be classified as “exempt, ” even though your title has the word “executive” in it. If you do not fit in one of the categories above, you should not be exempt from overtime pay. This is true even if you are paid a flat salary for your regular work (overtime pay is then based on your hourly pay, which is your salary divided by the number of hours in the pay period.)
10.You may be eligible for unemployment insurance if you are fired or quit your job for “good cause.” Being fired from a job does not disqualify you from receiving unemployment insurance unless you are terminated for “misconduct;”showing serious or intentional disregard for your employer’s interests. Repeated tardiness or unexcused absences from work may qualify as misconduct; “poor performance” is not misconduct and should not disqualify you from unemployment benefits.
The “good cause” standard for quitting a job can be difficult to meet. The following circumstances are considered to be “good cause” for quitting a job:
- Domestic reasons (leaving your job in order to maintain a marriage or family situation);
- You are offered a better job (if you are offered another job with better wages, benefits and potential, and then the job falls through);
- Health reasons (before quitting, you must inform your employer of the health problem and ask for a leave of absence or a less demanding job);
- Intolerable working conditions (such as safety, harassment, significant demotions or wage reductions. Your chances of showing good cause will be better if you notify your employerand attempt to solve the problem before you quit.).
In order not to be disqualified for unemployment insurance if you quit the job, you must also make all reasonable attempts to remedy the situation before quitting the job.
Consult the appropriate agency or an attorney about your rights. This fact sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the CCLS cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this informationwithout consulting an attorney or the appropriate agency about your rights in your particular situation.
Adopted from The Employment Law Center, a project of the Legal Aid Society of San Francisco, and a non-profit organization focusing on the employment-related legal problems of low-income workers.
© 1997 Employment Law Center, a Project of the Legal Aid Society of San Francisco
