California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

No one wants to walk into work one day and hear the words, “I’m sorry, but we have to let you go.” Although always upsetting, depending on the circumstances, these words may be lawful or unlawful. Generally, California follows the “at will” employment doctrine, which means the employment relationship may be terminated by either party for any reason as long as it does not violate any state or federal law. If there is a violation of law, the termination will be considered “wrongful.” Illegal reasons for termination include the following:

• Refusing to break the law
• Filing a discrimination, sexual harassment, or workers’ compensation claim
• Taking leave under the Family and Medical Leave Act
• Failing to comply with labor laws, including collective bargaining agreements
• Failing to comply with oral and written employment agreements

When faced with termination, it is easy to think that the situation is hopeless. On the contrary, there are steps you can take to protect yourself. Here are some tips for weighting the scales in your favor:

• Do not take any retaliatory actions against your employer
• Review your employment contract to determine your rights
• Inquire as to the specific reason for your termination
• Determine who made the decision regarding your termination
• Request a copy of your personnel file
• Return all company property and follow all post-employment procedures stipulated in the employee manual.

 If you believe you have been wrongfully terminated, you should immediately contact a California labor law attorney. As long as a claim is made within the statute of limitations, you may be able to be reinstated or recover lost compensation and/or damages. By consulting an experienced California labor law attorney they may be able to procure the following remedies:

• Reinstatement of employment
• Back pay
• Compensation for emotional stress
• Punitive damages to prevent further wrongdoing by the employer
• Mandated changes to the employer’s policies

While it may seem that your employer is holding all the cards, do not forget that you also have cards to play.

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Are you married, single, or divorced? Like many individuals, you may not relate the answer to this question to your employment status. Unfortunately, many employers wrongfully consider marital status when making employment decisions, including hiring, firing, compensation, and promotions. There is no federal law that specifically prohibits employers from making employment decisions based on marital status, although sexual and racial discrimination claims can be brought under Title VII of the Civil Rights Act of 1964. Nevertheless, a growing number of states have enacted laws protecting workers from adverse employment actions made on the basis of marital status.

In California, marital status discrimination is prohibited by Government Code Section 12940,  which states in pertinent part as follows:

It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United States
or the State of California:

(a) For an employer, because of the …marital status…of
any person, to refuse to hire or employ the person or to refuse to
select the person for a training program leading to employment, or to
bar or to discharge the person from employment or from a training
program leading to employment, or to discriminate against the person
in compensation or in terms, conditions, or privileges of employment.

The statute is enforced by the California Department of Fair Employment and Housing (DFEH),  which is one of the largest state civil rights agencies in the country.

Marital status discrimination, employment decisions made on the identity or situation of one’s spouse, can occur in a number of situations. Marriage between two individuals in the same company may be viewed as creating an uncomfortable working environment. If an employee’s spouse works for a competitor, an employer may consider it a conflict of interest. An issue may also arise where a spouse is deemed to be objectionable because of race, sexual orientation, or criminal background. These are all wrongful considerations by employers and employees should not hesitate to action.

If you believe you have been discriminated against based on your marital status, you should first consult an experienced California labor law attorney. By hiring a California labor law attorney, it may be possible to collect punitive damages, plus costs and attorney fees.

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An arbitration ruling has recently been handed down from the U.S. Supreme Court in a case entitled Stolt-Nielsen v. Animal Feeds Int'l Corp. 

Arbitrators, over the past several years, have followed U.S. and California Supreme Court rulings which have consistently held that if an arbitration agreement does not allow for class action treatment, then such class action treatment must be allowed.

In stark contradiction, the recent U.S. Supreme Court decision in Stolt-Nielsen v. Animal Feeds case, states "[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so." This essentially means that unless the arbitration agreement specifically permits class wide arbitration, none shall be allowed.

This holding is in direct contradiction to the California Supreme Court case entitled Gentry v. Superior Court which held that any arbitration agreement that does not permit class certification is an unenforceable and voidable “exculpatory clause.”

Without a doubt many defense firms in California will attempt to use the recent decision to reshape California law, however this will likely not be successful since Gentry v. Superior Court does not conflict with the Federal Arbitration Act (“FAA”)  since it applies to all class waiver “exculpatory clauses” whether or not they happen to appear in arbitration agreements.

In addition, the Stolt-Nielsen decision simply holds that, without specifically an express agreement by the parties, class arbitrations cannot be ordered "under the FAA."   The decision does not state, however, that the FAA preempts California courts from compelling class-wide arbitration under state law, such as the California Arbitration Act or the anti-exculpatory rule discussed in the Gentry case.     

 It is likely that California courts will still be bound by the Gentry decision and judges are likely to reject any attempt to enforce an exculpatory class-waiver clause since such would conflict with Gentry. 

 The likely outcome is that defense firms and their clients will not be able to avoid class actions altogether but rather will need to choose between class wide litigation or class wide arbitration.

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 If you are one of the many Californians currently seeking employment, you have probably been met with a request for a criminal background check.  In light of recent terrorist events and heightened concern for security, an increasing number of employers are conducting background checks.  A criminal background check usually involves prior arrest and conviction records, which brings the possibility of discrimination in the hiring process.

Recently, Roberto J. Arroyo brought a class action against his employer for violation of Title VII of the Civil Rights Act of 1964.  Arroyo alleges that his employer discriminated against Latino and African American individuals by denying or terminating employment based on their criminal backgrounds regardless of whether the employees’ prior conduct was job related.  There are both federal and state laws that limit the ability of employers to make criminal inquiries. Title VII prohibits an employer from using an employment practice that has an adverse impact on members of a particular class.  The Equal Employment Opportunity Commission (EEOC) has determined that the use of arrest records in a pre-employment setting can only be justified where the applicant’s arrest involved conduct that is “job related.”  Conviction records can only be used where there is a “justifying business necessity.”  This requires an employer to consider the type of offense, the time that passed since the conviction, and the nature of the job.  The EEOC believes this is a necessary measure as “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”

In addition to Title VII, California had adopted its own legislation to protect against discrimination based on criminal background checks.  Although arrests are public record, they cannot be used by employers unless the arrest resulted in a conviction or the applicant is awaiting trial.  (California Labor Code, Section 432.7)  There is an exception for health care providers who may ask about any sex related arrests.  Additionally, when the job involves access to medication, an employer may ask about drug related arrests. Unlike arrest records, criminal convictions are not public record.  Employers may not inquire into juvenile convictions or marijuana convictions that are more than two years old. The are exceptions for certain types of employers, including public utilities, law enforcement, security guard firm, and child care facilities. (California Penal Code, Sections 11105 and 13300).

If you are seeking employment and worried about past arrests or a criminal record, there are steps you can take to prepare for a background check.  Go to the county where the court hearing took place and request to see a copy of the record.  Review the document carefully and make sure the information is accurate and up to date.  If you have any major driving infractions, such as a DUI or DWI, it is also a good idea to request your driving record from the Department of Motor Vehicles.  Again, review the record for completeness and correct any inaccuracies.  Once your interview with a potential employer is complete, make sure you receive a copy of any background reports concerning you.

If you believe the employer violated the EEOC or other employment law, contact a knowledgeable California labor law attorney as you may have a claim for damages.   

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Worker misclassification is becoming a new hot button issue at both the state and national levels. It has been a long standing practice of employers to misclassify employees as independent contractors so as to avoid payment of taxes, unemployment benefits, workers compensation benefits, overtime, etc. This is a problem for California workers, because they are being denied compensation and benefits to which they are rightfully entitled. It is also a problem for the state of California, which continues to struggle with a huge budget deficit.

The test for determining whether an individual is an employee or an independent contractor depends on the state or federal law being applied. Under common law, an individual is considered an employee “if the person contracting for the services has a right to control and direct both the results of the services and the means by which those results are achieved.”  
At the federal level, the IRS and Social Security Administration have developed a 20-factor test for determining the level of control held by the person contracting for the services. The factors focus on three primary components:

• Behavior control – the right of the worker to control how a specific task is accomplished
• Financial control – the right of the worker to control the “business aspects” of accomplishing a specific task
• Relationship of the parties – how the parties perceive their relationship 

At the state level, California has several different tests including those found in the California Labor Code and California Tax Code.  When enforcing wage and hour laws, the California Division of Labor Standards Enforcement (DLSE) uses the “economic realities” test,  which like federal law focuses on the degree of control held by the person performing the services. As Jonathan Siegel explains, there are many questions that can be asked, including whether the worker is performing specialized services and providing the required tools and equipment.
 

To ensure that workers are being properly classified, the IRS has developed a new audit program for employment taxes. Beginning in February 2010 and lasting through 2013, approximately 6,000 companies will be audited. In addition to resolving any worker misclassification issues, the IRS plans to collect data that will be used to improve future employment audits. 

President Obama is also doing his part to crack down on worker misclassification. The proposed budget for the fiscal year of 2011 provides the Department of Labor with an additional $25 million to increase enforcement personnel and issue grants to bolster the states’ ability to address this problem. 

If you believe your employer has wrongfully classified you as an independent contractor, contact a knowledgeable California labor law attorney. An attorney can explain your rights and may be able to collect many benefits to which you are entitled.

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