Most employees in Calfiornia are at "at will," which means that    their employer may terminate them at any time for any reason, except for a reason that is illegal.  It also means that the same employee may quit his or her job at any time.  However, even if you are at will employe, you may have other contract or legal rights.  In order to determine if you have other contract rights, you should seek the advice of counsel.  Moreover, even if you do not have contract rights, your may have civil employment claims for violations of law, public policy, statute, constitution or regulation, such as illegal discrimination and harassment.  However, if you are terminated as a result of a personality conflict, office politics, or other reasons that are not unlawful, you will likely not be able to sue without proof that the motivation for the hostility was unlawful.  Also, many different types of statutory claims require an employee to exhaust administrative remedies by filing a claim with the agency prior to filing a lawsuit.  Examples of agencies with certain exhaustion requirements, including the California (CA) Department of Fair Employment and Housing (DFEH), the United States (US) Equal Employment Opportujnity Commission (EEOC), and the California Division of Labor Standards Enforcement (DLSE).

There are many exceptions to at-will employment contained in both state and federal law, including unlawful harassment, discrimination and retaliation.  These exceptions include, wrongful termination because of age, gender, sex, race, sexual orientation, sexual preference, marital status, religion, disability, ancestry, national origin, military service, invasion of privacy, whistle-blowing, and other protected legal rights.  There are also protections for employees who have complained about unlawful or other improper conduct (whistle blowers), have exercised other protected rights (taking medical leave, jury leave, disability leave, etc.).  If you believe that you have been terminated unfairly, you should consult with a labor and employment attorney to determine what rights you may have against your former employer.  These claims can be complex and difficult, and the assistance of a experienced lawyer, may be necessary to increase your chances of success in a case from wrongful termination or discriminaiton.

Discrimination may exist when an employer engaged in disparate treatment of an employee because of a protected category, or where a neutral policy has a disparate impact employees of a protected class.  California and/or federal prohibit many types of discrimination, including discrimination based on age, ethnicity, disability, race, gender, sex, gender based wage discrimination, sexual orientation, religion, color, ancestry, marital status, pregnancy, medical condition, and veteran status.   

To have a claim for disability discrimination an employer generally must treat you differently because you have a mental or physical condition that makes the achievement of a major life activity difficult. or becuase your employer perceives you as having such a condition, or you have a record of having such a condition.  Disability laws are complex and are an evolving area of the law.  Often employer fail to follow the statutory requirements for handling qualified disabled employees who are able to perform the essential functions of their jobs leading to significant claims for discrimination.  An employment lawyer can assist you in determining whether your condition qualifies for a disability protected by discrimination law, how to present your information to your employer and what reasonable accommodation you may be entitled to maintain employment.

In general, a reasonable accommodation must be considered     when the employer is made aware of a disability that precludes an employee from performing the essential functions of his/her job.  A disability protected under California law includes mental and physical conductions which limit an employee's ability to perform a major life function, such as working.  Reasonable Accommodation is basically a change or made to a job and/or the work environment that enables a disabled person to perform the functions of that position.   A reasonable accommodation may also include, but is not limited to, a leave of absence to receive medical care, a part time assignment, and/or a different job.

Your employer may have to grant you leave, if it has a policy to provide leave, or if you qaulify for leave under the Family and Medical Leave Act and California Family Rights Act

The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) allow eligible employees to take up to a twelve (12) weeks, per calendar year, of paid or unpaid job-protected leave. To be eligible for FMLA/CFRA leave, a full-time employee must have been employed for a total of twelve (12) months and worked 1,250 hours in the year preceding the date on which the FMLA/CFRA leave is to commence, or on a rolling twelve (12) month basis depending on the employer's policy.

The purpose of FMLA /CFRA is to allow eligible employees to take a job-protected leave: (1) When the employee is unable to work because of a serious health condition, (2) To care for an immediate family member (spouse, child or parent) with a serious health condition; and (3) The birth or adoption of a child or foster care placement of a child.

Many times an employer cannot terminate an employee when the time for leave expires.  Additioanl leave may be provided by the employer's policies.  Moreover, if additional leave would be a reasonable accommodation for a disability, an employer cannot deny such unless it would cause an undue hardship.  If you have been terminated because your disability leave extended beyond 12 weeks, you should consult with a lawyer to determine if you have a case.

Many California and federal statutes have provisions barring employers from retaliating against employees who raise protected complaints.  For example, raises a a claim of sexual harassment, discrimination, wages, protected medical leave, or matters protected by state or federal statute, and suffers and adverse employment action as a result he or she may have a claim for retaliation.

Sexual harassment is basically defined as unwelcome sexual conduct that is servere or pervasive and that creates a hostile or abusive work environment.  There are two types of sexual harassment claims. The most common in recent years has been hostile environment sexual harassment.  This type of harassment is usually motivated by an animus toward women or sexual desire, and takes the form of sexual advances, jokes, comments or actions that alter the work environment. The second type of sexual harassment is called quid pro quo ("this for that") sexual harassment. Quid pro quo sexual harassment most often occurs where a supervisor or manager threatens some adverse employment action absent relenting to sexual demands or offers employment benefits in exchange for sexual favors. There are also other protected basis of prohibited harassment, such as racial, national origin, disability, age, ancestry, religion, sexual identity, and other potected categories.

Damages that may be recoverable for violations of law include back pay, front pay, emotional distress, and punitive damages.  Of course, to obtain damages or a recovery you have to win your case or settle with the defendant.  Other remedies such as reinstatement, promotion, policy changes and injunctive relief are sometimes obtained; however, such remedies are fairly rare.

To protect your rights you should immediately seek to consult with a lawyer.  Your claims are subject to time limits called statutes of limitations.  Although many statutes of limitations are one year or longer some may be 90 days or shorter.  You have to make a timely claim to preserve your rights.

In addition to making a timely claim, you will need to gather and keep evidence of your claims.  Here are some suggestions:

• Keep a journal of the dates, times and locations of incidents of harassment or discrimination. 
• Review and obtain your companies policies and procedures on complaining about unlawful activity, including whethere there are ways to complain anonymously.
• Keep a log of the witnesses to any unlawful conduct, and keep any informaiton you have about how to contact the witnesses.
• Keep copies of all documents you were given as an employee, including evaluations, paystubs, offer letters, handbooks, discipline, commendations, notices, reasons for termination of employment, and everything else.
• Keep copies of all documents you gave to your employer, including any documents explaining your situation and complaints.
• Keep all evidence showing the wrongful conduct.
• Request a copy of your employment file.
• Try to consult with a lawyer before things get out of hand to determine your rights and assist with strategies for protecting your rights. 
• Draft a timeline of events and circumstances for you potential lawyer to review, so he can understand what happened and determine whether you have a case. 

Unless your employer can establish that you qualify for an exemption from overtime laws, you are entitled to overtime.  The common exemptions from overtime are the executive, administrative, professional, outside sales, inside sales, and computer professional.  However, the title of your job is not determinative of whether you are exempt, instead the duties of your job, including whether you excercise independent discretion and judgment must be examined.  Also, employers sometimes classify employees are "Independent contractors" to avoid overtime.  When companies misclassify or fail to pay overtime to many employees Class Action Lawsuits may arise due to common pracitices, policies and mistakes allowing many employees to make claims for recovery of wages owed.

Being paid a salary is generally insufficient for an employer to establish that an employee is exempt. Employers often misclassify employees asexempt under the administrative, executive or professional exemptions thinking employees don't qualify for overtime when they do, simply relying on titles such as executive, manager, and supervisor.  However, exemptions require an analysis of the duties performed to determine if someone is exempt, and under California law more than 50% of time worked must be exempt work.  Notably, there are some exemptions from overtime that do not have a salary requirement and some that require payment of overtime at an hourly rate to maintain an exemption.

Generally, classification requires that the employee meet both a duties test and/or salary basis test.  It is often not enough that an employee is paid a salary.  Instead, the employee must spend more than one-half of their time on exempt functions. The major exemptions are the executive, administrative and professional ones. These exemptions require the exercise of independent discretion and judgment. If you believe you might have been misclassified, you should raise the issue when you speak with an attorney. 

California law requires that employers provide meal periods and make available rest peirods.  If meal periods and rest periods are not properly provided, the law provides that one hour of premium pay is owed to the employee per violation.  Breaks of at least 10 minutes must be provided every 4 hours or major fraction thereof.  Meal periods of at least 30 minutes must be provided to an employee for a work period of more than five hours per day, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent to both the employer and the employee. An employer may also not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutu-al consent of the employer and the employee only if the first meal period was not waived.

Class action lawsuits are governed by either federal rules or state rules depending on the nature of the claims and/or the location of the lawsuit (i.e., state or federal court).  Some claims, such as claims for overtime under the Fair Labor Standards Act are brought as a collective action (where each employee has to opt into the case).  Other types of class action claims are brought where a class member has to opt out of the action.  In general, to proceed with a class action under California law (1) you must be an adequate representative of the class you seek to represent, (2) the group of affected persons must be many or numerous, (3) your claims must be typical of the class, (4) the common or class issues of fact or law must predominate over individual issues, and (5) class counsel must be adequate.  Class action cases are usually allowed to proceed when an employer has a policy or practice that violates the law.  Class actions are also allowed when there are common methods of proof, such that the claims will not break down into a series of mini-trials on liability issues.  In California, depending on the circumstances, claims for discrimination, overtime, working off the clock, misclassification as exempt from overtime, meal and rest periods, failure to pay vacation, failure to reimburse required expenditures and/or losses, and failure to pay all wages due at the time of termination/separation have been allowed to proceeded on a class basis.  For information on some of the class actions that Ben Blady is or has handled, please visit the class actions page of this website, or the class action page at bwlawgroup.com.

First, we will intereview over the phone to get an idea about your claims.  Second, if we believe that you may have claims against your employer, we will set up an in person interview.  At that interview we will want to review all documents that you have as well as any chronology you have prepared for attorney review.  We will also ask you more detalied questions about your situation and for the identity of potential witnesses.  Depending on your answers, the evidence and our evalution of the case, we will decide whether to take your case.  Last, if we agree to accept your case, we will enter into a written agreement of representation.