If You Have a Problem At Work, We Can Help
The following is a list of questions that we address on a regular basis. While general answers to these questions may be of some benefit, because of the complexities of the law as it relates to each situation, general answers can be misleading or entirely incorrect for your exact situation. For this reason, it is urged that if you have a legal question that you secure an evaluation to your specific facts.
- At - Will
- Disability Discrimination
- Family Medical Leave
- Pregnancy Discrimination
- Sexual Harassment
- Wage and Hour Claims
Our initial telephone conversations are short, but most potential client’s situations are complex. Therefore, we would like you to tell us about your problem with your employer in a manner that allows us to give it the attention it deserves to be fully understood before we make the determination as to whether or not we are the right firm to assist you. This is why we asked you for a “chronology”.
A chronology is a summary of your issues in a timeline format. The chronology should begin with your date of hire and your job position. It should then explain all important events that occurred during your employment that led to you calling us.
The following is a very short example of a chronology. Yours may be significantly longer, and that is fine as long as it is focused on the reason you are seeking legal help.
4-2000: I was hired as an Account Clerk. I had to do data entry, filing, and general clerical duties. I had no negative performance reviews and was promoted twice.
2007-2009: I began having significant pain in my wrist, and went to see the doctor. My doctor diagnosed me with carpal tunnel syndrome. I was off of work for three months, and then my doctor allowed me to return but restricted the amount of time I could spend typing on the computer without a break.
1-3-2010: I returned to work and turned in my doctor’s restrictions to my immediate supervisor. I was allowed to do my regular job for six months without issue. In fact, in March I was given a job performance evaluation that said I was doing at least satisfactory in my job. During this period of time, I was able to mix up my job duties in manner that followed my restrictions. For example, I would type for one hour, then do filing, etc.
7-1-2010: I got a new supervisor, Jane Doe. She told me that she wanted me to do all of my reports in the morning, and save the filing for the afternoon. I told her that doing all of the filing at one time would violate my doctor’s restrictions. She did not care, and said that she wanted it done that way so that she could have all of the information she needed in the morning.
7-15-2010: I attempted to do the typing in the morning, but immediately started having problems with my wrists. I saw my doctor who prescribed a wrist brace and told me that I could not type more than one hour without a 15 minute break. I returned to work and gave Ms. Doe a copy of my doctor’s new restrictions.
8-1-2010: Ms. Doe told me that my job required that I finish my typing in the morning, and that they had no jobs that would follow my doctor’s restrictions. I was then terminated.
The analysis of your employment case to determine whether or not we are the right firm to assist you is free.
We evaluate each potential client’s problem on a case-by-case analysis to determine the resources that would be needed to handle the matter, and only then do we make a determination as to how our office can proceed with the matter. We have taken many cases on a straight contingency, mixed contingency, and/or hourly basis
It really depends on the specific facts of your case. If you are not disabled as defined by the Fair Employment and Housing Act or ADA, nor do you have a “serious health condition” as defined by the California Family Rights Act, your employer might be able to legally terminate you. But, if your health meets the definition of “serious health condition” and you meet other various requirements (e.g., you have worked over one year), then you are protected from termination. Further, if you have a chronic “disability” as defined by the aforementioned laws, and you are missing work because of that disability, it might be possible that your employer cannot terminate you if they have not made attempts (i.e., accommodations) that would have allowed you to work. Since, the issue is so fact specific, you should contact us if you were terminated while out sick so that we can analyze whether or not any laws were violated in our opinion.
It depends. The law basically defines sexual harassment as unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature. So, for example, if the person is touching your hair, do you think they are doing it for sexual reasons? Does the person touch the hair of both men and women? Are there other events that make you feel it is sexual in nature such as leering, slurs or jokes that you find offensive? Not every situation is “sexual harassment”, but if you are bothered by what you believe to be sexual harassment in the workplace, you should make a complaint about the conduct to management and/or human resources, and if it does not stop then contact us to see if you have any recourse based on the specific facts of your situation. You are protected by law from retaliation from making a complaint that you reasonably believed to be of sexual harassment, even if technically the actions do not meet the definition of sexual harassment.
Can I be fired even though I did an outstanding job for my employer and never engaged in any misconduct whatsoever?
Generally speaking, yes, although there are exceptions. In California, employees are “presumed” to be “at-will”, meaning that you can leave your employment at any time and/or your employer can fire you at any time. But, there are exceptions to this rule. Obviously, if you are working under a contract (written or oral) and/or a collective bargaining agreement, you may not be “at-will”. Further, even though you may be employed “at-will”, you cannot be terminated in violation of a public policy. For example, your employer can not fire you due to race, religion, national origin, disability, gender, sexual orientation, etc., nor can you be fired because you engaged in an activity that public policy supports (e.g., whistle-blowing against criminal activity in your workplace).
If you feel you have been terminated “wrongfully”, you should seek legal advice to see if your personal situation violates a public policy, because even if you are “at-will”, you could have a claim for wrongful termination.
Yes, there is a three-year statute of limitations to bring a claim for unpaid overtime, so claims within this period can be brought against a former and/or current employer.
Generally speaking, everyone is entitled to a meal and rest period if they are working over 5 hours a day. There is a penalty if your employer fails to allow for these breaks. California Labor Code section 226.7 states,
“(b) If an employer fails to provide an employee a meal period or rest period…, the employer shall pay the employee 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.”
Probably. There are different requirements for overtime pay depending upon the type of job classification that you have. For example, nurses, truck drivers, outside salesmen, etc., may have rules specific to their job that mean that they are not entitled to overtime in the same manner as general workers. But, generally speaking, in California individuals are entitled to overtime unless they are “exempt”. Many individuals are “exempt” because, for example, they are “managers”. But, an employer must prove that the actual job duties that the “manager” performs the majority of the workday (over 50%) qualify that individual to be “exempt” from its duty to pay overtime. Therefore, even if you are called a manager, if you are required to do the work of a lower-level, non-exempt, employee, then you would probably be entitled to overtime pay.
Generally, it depends on many factors that have to evaluated on a case-by-case basis. For example, it is possible that you took medical leave during the year for a medical condition, it may factor into the total amount of time you can take for bonding. Another factor would include whether and to what extent you are disabled due to the pregnancy and/or following the birth. Generally, an employee could take up to four months pregnancy disability leave for her disability, and 12 weeks CFRA leave to bond with the baby.
If I need assistance in the workplace due to a disability, what do I need to do to make sure my employer gives me that assistance?
If you have a disability as defined by California’s Fair Employment and Housing Act (generally, a physical or mental impairment that limits a major life activity), and feel that you are able to work with an accommodation, both you and your employer are required to engage in a good faith “interactive process” to determine what reasonable accommodations are needed that will allow you to work. An interactive process is defined as an on-going communication between you and your employer to determine a reasonable accommodation. Your employer must know that you have a disability, and you should make a specific request for the accommodation you and/or your doctor believe you need. Then, your employer must work with you to identify reasonable solutions that would allow you to perform the job.
My workplace hired someone younger than me (or, for example, hired someone who is male, or Caucasian, or not disabled, etc.) to replace me. Can I sue for discrimination?
It depends. The above information alone would not make a very strong case of discrimination. To be successful in a discrimination lawsuit, you need to show that the person who decided to terminate you was motivated by your category (e.g., age, race, gender, disability, etc.). For example, if your boss wanted only young people to work with him, and that was the reason he terminated you, then he was being discriminatory. There are many ways of showing discrimination, and potential claims are always evaluated on a case-by-case basis. Types of evidence we would look at include whether or not your employer had a legitimate basis for your termination (e.g., you violated a company policy), whether the decision-maker had made hostile statements against older workers in the past, whether he kept other older workers employed and treated them well, and/or other similar types of information. If you think you have been discriminated against, you should contact us so that we can review your facts fully.
We handle most issues that arise regarding an employee’s relationship with their current and/or former employer, with the exception of worker’s compensation claims. Examples of the types of cases we handle include, but are not limited to discrimination, harassment, wrongful termination, compensation disputes, review and/or negotiation of severance agreements, leave of absence rights, contract disputes, and various other issues that could arise from an employment situation.
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