Updated: 2 days ago
Top reasons why you need to consult with an employment lawyer in Los Angeles
Everyone often discusses that workers need more protections, but little attention is given to what rights employers abuse on a regular basis under California and federal law. The rights of workers are more critical than ever in this economy, of course. Big corporations seem to have gained control and the opportunity to abuse employee rights, with fewer and fewer small businesses hiring employees in California.
Why you must consult with a California employment lawyer
Wages and hours are one form of employee rights that are frequently at issue. In particular, in many recent employment law cases, the topic of labor law breaks has made its way to court. For every 30 hours of work done for the employer, workers are entitled to a 30-minute uninterrupted meal break.
What if, though, by signing a meal break waiver, workers forfeit their right to a meal break? Or what if the worker clocks out for a meal break but continues to work through the break as the employee is expected to do so by the company? In California employment law, these employee rights are actually hot topics, and the answers to these issues are unclear as of now.
Another hot subject about the rights of workers deals with employment discrimination. If a company fires an employee but offers a false excuse for the termination, what happens? Is this called an unfair termination? Does this give rise to a feasible occupational discrimination claim?
Suppose workers prove that an employer offered a false excuse for firing the employee under California discrimination laws. In that case, this does not necessarily mean that the company violated the employee's rights. However, for the reason why the employee was fired, the company has to give another reason. The employee can have a viable discrimination argument if this justification is considered discriminatory.
Another current issue of California employment law is employee rights relating to working conditions. In particular, the question of whether workers are forced to stand up without the opportunity to sit down in a chair for long periods of time. Recently, several complaints against employers that need workers to stand up in the retail sector have been filed. Do employees' rights entitle employees to sit down, or are staff forced to stand up all day long?
Top Labor Law Issues for California
While several California labor law issues are prevalent today in California, seven stand out as the most important. They deal with: overtime pay estimation, dealing with independent contractors, identifying between exempt and non-exempt workers, arranging breaks appropriately measuring job and travel time, recognizing the Family Medical Leave Act and the Family Rights Act of California, and avoiding sexual assault.
California Employee Right # 1 - Overtime
Make sure that your business determines overtime pay for workers correctly by defining any qualifying hours. Find out their "regular rate" by HR and then decide whether the time and half or double time should be charged for the overtime hours.
Overtime for non-exempt workers is broken into two categories. When the worker does one of the following, the 1.5-fold rate arrives:
Works in one workweek for over 40 hours
Works on a single workday for more than 8 hours, up to 12 hours
On the 7th workday in a row in a single workweek, 8 hours worked
When a non-exempt employee does one of the following, the double pay rate is valid:
Works for more than 12 hours in a single workday
Works in a single workweek past 8 hours on the seventh workday in a row
California Employee Right # 2 - Independent Contractors
As an employer, relative to regular workers, you are expected to hold multiple tax forms for independent contractors. You will need a 1099-MISC on file when you employ a contractor. You will also add various withholdings from their paychecks and pay their taxes with an alternative sum.
While when you hire an independent contractor, you will alleviate some of the legal pressure caused by both federal and state employment laws, make sure you hire them in the right way. Notice that regulatory agencies and courts generally use common law rules in California when ruling on the status of an independent contractor.
California Employee Right # 3 - Exempt and Non-exempt employees
It is necessary to find out if the workers in California are listed as exempt or non-exempt and affect both work duties and minimum wage requirements.
Exempt employees are required, according to California employee rights, to earn at least twice the minimum wage for a full-time individual, on a monthly basis.
The worker must spend more than half of their work time performing job duties considered exempt from qualifying as an exempt employee. This can be achieved, if necessary, by conducting a strict task examination. This is provided by the California Labor Commissioner and includes a full week's review of the work of the workers.
California Employee Right # 4 - Rest and Meal Breaks
Each time they work more than five hours, workers are guaranteed a mealtime of at least 30 minutes. Mealtime breaks are off-duty and unpaid and should be taken before six hours on a shift are reached by the employee.
California workers are also entitled to a second meal break of at least 30 minutes if, on a single working day, they work more than 10 hours. Before the employee's 11th hour of work starts, the second break must be taken. On-duty meals are only approved in certain cases.
An uninterrupted rest time is also permitted for non-exempt workers if they work at least 3.5 hours per day. They can take a 10-minute rest period for every four hours worked. And if a "major fraction" of four hours are employed, they are entitled to a rest. Typically this reflects every time worked for two hours.
Employers are forced to pay the employee an extra hour of regular pay and time the employee is not permitted to take an acceptable meal period to promote compliance with this rule. To demand this extra salary, the employee gets up to three years. For any missing or disrupted rest break, one hour of pay should also be granted and should be included in the next pay cycle for the employee.
California Employee Right # 5 - Job Hours/Travel Time estimate
In some cases, workers are allowed to demand working hours while conducting job-related tasks such as commuting, attending training, or having some other sort of job education, but these activities are not legally considered "work time." Employers are required to maintain clear and consistent definitions of all of these activities to help measure work hours accurately for California employees. Employers must also announce any rate increases related to travel or other special conditions.
Employees may apply for makeup time instead of being paid overtime, which allows them to take leave for personal reasons instead. As an employer, if your employee asks for it, you should definitely arrange for makeup time, but you're not expected to allow it. If you are a private employer subject to the Fair Labor Practices Act, you are not entitled to offer compensatory time for workers instead of overtime.
It is also necessary to consider the rules for the seventh consecutive day of work that entitles non-exempt workers to pay for overtime. Both California and the federal government may also have additional restrictions on how many hours may be served sometimes. Additionally, every California corporation hiring piece-rate employees must also pay those employees on top of the money charged at their piece rate for their rest periods. A pre-determined hourly rate could decide this.
It is necessary to maintain detailed reports on file relating to the work hours and salaries of all workers to protect the company from employee lawsuits. Under the CA Labor Code and Industrial Welfare Commission (IWC) Wage Orders, you can qualify for different record-keeping rules if your business is in a related industry.
There could be restrictions on how many hours may be employed under both federal and California labor law, depending on the employee's age, the company's business, and the time of year. Some situations, however, permit longer working hours. There is also a limitation on how many hours a minor might operate.
California Employee Right # 6 - Family Medical Leave Act (FMLA) and the Family Rights Act in California (CFRA).
You are entitled to both the Family Medical Leave Act (FMLA) and the California Family Rights Act if your business has 50 employees or more (CFRA). Federal law is the former, and state law is the latter. They allow a certain amount of time off for workers to be allowed for personal situations such as:
Sickness (either for the employee or a family member)
A child's birth
A child's adoption
Difficulty connected to the military service of family members
This leave period can be used by qualifying workers for as many as 12 weeks per year. If the benefits is used to care for an injured military service member, the time bumps up to 26 weeks a year. Complying with these laws is particularly important because they are one of the most prevalent violations of employee rights in California, often resulting in lawsuits and major liabilities. Employers should, therefore, not discriminate against an employee or retaliate because through either FMLA or CRA, they have decided to take off time.
These family and medical leave laws are directed at companies with at least 20 calendar weeks this year or the previous year with 50+ workers. For any public employer, the laws still apply, no matter how small. Eligible employees, even though they have not earned any compensation yet, include those on the payroll, as well as commissioned workers and part-time workers.
However, in order for an employee to be considered, certain limitations do apply. They ought to work at the employer's business for at least a year, according to the CFRA. They should have a total of at least 1,250 hours before taking some leave during that period. When on family or medical leave, the worker may either consecutively use up all 12 weeks or use the time in shorter intervals, such as weeks, days, or even hours. If they use their time in smaller chunks, as long as they earn the same benefits and pay scale, the employer may temporarily place the employee in a different position.
The employer may ask the employee to temporarily move to a job better suited to that schedule for which the employee will have an equal salary and benefits if an employee takes an intermittent or reduced family/medical leave schedule.
It is also necessary for companies to understand that regularly scheduled workweeks apply to 12 weeks. If an employee is entitled but operates on a non-traditional schedule, the limit of 12 weeks is proportionally determined by working days. For entitled leave to occur, employees have an option of four forms to select the 12-month period.
If the employee is taking time off for his own illnesses or because of a sick family member, employers may also require some form of medical qualification. It is also necessary to adhere to medical privacy laws and will restrict exactly what kind of information is needed. Additionally, to qualify for leave, a severe health condition must follow particular definitions.
Employees in California should have access to a clarification of their family leave rights by posting educational notifications from their employer. Although family and medical leave are unpaid, during their leave period, workers can use their paid sick days or paid time off. They will have the right to continue receiving, through the employer, their insurance benefits, as well as their retirement and pension benefits.
Because the time for family and medical leave is approved, the employer must also offer guarantees that the employee will be able to go back to the same or at least a similar position. A civil action against the employer may result in any breach of these laws; in addition, managers may be held personally responsible for any breaches. An employer should have a family and medical leave policy on file that is unique to their organization to help prevent these circumstances.
California Employee Right # 7 - Sexual harassment in the workplace
Employers in California should understand how sexual harassment is described and how they can avoid and prevent it from happening in their own work effectively. Any sexual activity at work, whether verbal or physical that is inappropriate is considered to be sexual harassment. This is further broken down into two classifications: quid pro quo or hostile climate.
Sexual assault is forbidden by Title VII of the Civil Rights Act of 1964 and extends to employers with 15 or more workers for 20 or more weeks in this or the preceding year. In California, the California Equal Jobs and Housing Act extends additional safeguards to applicants, unpaid interns, workers, and independent contractors.
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