California Employment Legal Questions

Employers may not encourage or coerce an employee from taking rest breaks as required by law.  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.) An employee and an employer may mutually agree that the employee will waive a meal break. (Labor Code § 512(a).) There may be a number of reasons why the employer and employee agree to such a meal break waiver; for example, the employee may want the additional 30 minutes of pay, the employer might have a need for low staffing during the employee’s shift, or the employee simply may have lunch or dinner plans after work. However, even a meal break waiver is only allowed in very limited circumstances. If an employee’s shift is 6 hours or less, the meal period may be waived by mutual consent of the employer and employee. So, if an employee works six-and-one-half hours, she and her employer are prohibited from a meal break waiver. Likewise, if an employee’s shift is 12 hours or less, the second meal period may be waived by mutual consent only if the first meal break was not waived. This means that an employee who works, for example, 14 hours may not waive this second meal break, regardless of whether or not the first meal break was waived. If you are working the number of hours you indicated, your employer cannot require you to waive your breaks.  If you are in the North Bay Area of California, contact me for further information.  ... Read More

I would be happy to review it with your husband.  My office is in Santa Rosa, CA, but if you are some distance away, we could arrange a teleconference or video conference to go over it together.  I charge $225/hour, with a one-hour minimum charge.  I also accept credit card payments.  Let me know if I can help.  It's always a good idea to have separation agreements reviewed before signing them.... Read More

Typically, unemployment benefits protections for workers are quite broad because the unemployment compensation system exists for the sole purpose of providing such benefits to eligible workers.  One exception to these broad protections is when an employee voluntarily quits their job.  However, there is an "exception to the exception," if you will, in California - in California, an employee who quits their job for "good cause" may still qualify for unemployment benefits.  California is a state that tends to define "good cause" rather generously.  "Good cause" means any substantial or compelling reason for quitting, whether work-related or personal.  I have seen many instances where workers quit due to a harassing or hostile work environment, and they still qualified and received unemployment benefits.  Quitting because you were asked to do something illegal is not likely to bar you from seeking and receiving unemployment compensation benefits, provided that you meet the other requirements of the system (apply timely, are actively seeking work, etc.) In addition, you may also have a claim against your former employer for constructive termination of your employment/whistleblower protection.  Constructive termination claims exist for employees who are essentially forced to quit their job for some reason, usually a reason that violates a statute or some other public policy protecting workers.  For an employer to essentially say, do this illegal thing or we will find someone else who will, would support such a claim.  Of course, you would need marshall proof of everything you are alleging, so it would be important for you to have documented everything that occurred with this employer.  For example, when you quit, did you provide a written reason that explained the problem?  Are there any communications in writing by you or the employer discussing this issue?  When you were told, do this or else, was that memorialized in any kind of writing?  These documents can be relatively informal like a short email, notes, etc. and do not need to rise to the level of formal correspondence.... Read More

You need to explain your relationship with the attorney and the client, as well as the details of your compensation arrangement and what position you hold. It is clear that if you were an employee of the attorney, then you would not be entitled to any part of the court award. The award would be treated in the same way it would be treated as if the client were billed $85/hour for your services.... Read More

No one is going to give you an opinion here without reviewing the case. In addition, no one will give you an opinion in a public forum because that opinion would not be confidential. It may also create an attorney-client relationship with you, which no one will do through a public forum. If you need a second opinion, I suggest you go to another attorney with experience in handling wage claims against an employer. You may need to pay for an hour of that lawyer's time, but it will give you the peace of mind you seek. Best of luck to you.... Read More

Wage disputes are always tough.  If you complain, do you get fired?  If you don't complain, you keep getting shafted.  Hopefully you've kept your resume up to date and are looking for other options b/c this employer isn't one you want to keep working for if they play games with your paycheck.  You could complain to the California department of labor or the federal department of labor.  Each has a wage and hour division. One thing employers don't want is the government looking into their wage practices.  You could give your employer an ultimatum -- pay me correctly and on time or you'll file a complaint.... Read More

Generally all employment in California is presumed to be at will..what that means is that an employer may terminate an employee for any reason (with exceptions), no reason at all and with or without notice. The limitations imposed are that an employer may not terminate an employee for an unlawful motive, i.e., discrimination, pregnancy or such things as retaliation for an employee filing a complaint against the emplooyer for something the employee reasonably believes was an unlawful act on the part of the employer..otherwise you can always terminate for a legitimate business reason but be careful for instance if the terminated employee is over the age of 40  and you terminate and hire someone under the age of 40 the terminated employee may be abnle to claim age discrimination....Stephan Math Esq, smesq1@aol.com... Read More

Usually with the possible exception of public employees, the union owns the arbitration clause..what that means is that in most CBA involving private employees only the union can make the decision to go to arbitration...you need to check your agreement in o9rder to determine whether you are entitloed to have an attorney of your choosing represent you in arbitration...Stephan Math Esq, smesq1@aol.com... Read More

How long after each act of claimed retaliation did you file a complaint? Was there any grievance ever filed by the Union? My concern is that you may have a statute of limitations problem. If the union wasnt doing anyth9ing over a five year period of time why have you waited so long to seek redress outside of the union?  What was the complaint to the labor commissioner about? Generally, it is unlawful for an employer to retaliate against an employee who has made a complaint to a governmental agency fo9r what the employee believes to be an unlawful act on the part of the employer...however, there are statutory time limits and none extend to five years unless a possible argument mighjt be made of a continuing violation...Stephan Math Esq, smesq1@aol.com... Read More

It depends on the issue..if it is one of discriminatory treatment then you can file a complaint with the California Dept. of Fair Employment and Housing..if it is a whistleblower sitation then you may want to talk with an attorney..in fact I would recommend talking to an attorney as most will not charge for initial advice in order to determine if your issue is actionable....Stephan Math Esq, smesq1@aol.com... Read More

Ryan, its not clear what the purpose of the second interview with the second agency was for...however, generally speaking there is a privilege that exists between past employers and prospective employers concerning information provided with respect to an applicant for employment...under California law, Labor Code Sect. 1050 however, it is unlawful for a past employer to provide false informatiopn concerning a past employee for the purpose of preventing the reemployment of that employee. If the information is false there may also arise a cause of action for defamation depending upon what was said. Bear in mind that the above only applies if the information being provided is false. Should the information provided be true there would be no cause of action UNLESS the information provided violated some clonfidentiality agreement or some statute prohibiting the dissemination of such information without the prior consent of the person to whom it pertained, i.e. medical or health information. Stephan Math Esq., smesq1@aol.com... Read More

Very interesting..the first issue I see however, is that it appears that you told them of your pregnancy verbally...if that's the case they would probably deny that you told them..is it apparent that you are pregnant? Assuming they would deny your haveing told them is there any other evidence as to whether they knew you were pregnant? The next issue would be whether in fact there was a reorganization requiring the elimination of your job...what information if any do you have that in fact a reorganization has occurred and your job has in fact been eliminated? I take it you did not ask for a preganancy leave at the time you told them..did you request any accommodation due to your preganancy?......upon receipt of this information I should be able to advise you more specifically.. Stephan Math Esq...smesq1@aol.com... Read More

It seems that if there was not a mutual waiver of the right to those breaks that the employer is obligated to provide those breaks and that a failure to do so results in a wage claim ...   Meal periods. Under Lab C §512(a), an employee may not be required to work for a period of more than 5 hours per day without a meal period of at least 30 minutes; however, if the total work period per day is 6 hours or less, the meal period may be waived by mutual consent of both the employer and employee.                                                                                              Stephan Math Esq., smesq1@aol.com... Read More

Technically “yes” – the employer in an “at will” State, like California, can fire you for any reason at any time.  However, I am always suspicious when an Employer decides to “randomly” fire a woman who is taking time off for maternity leave.  It would be a good idea to speak with an attorney about the other facts surrounding your employment because you may have a good employment claim (for example under FEHA).  ... Read More

While all employees both probationary and otherwise are protected from unlawful actions by their employer such as unlawful discriminatory treatment and other unlawful acts in general, all employees in California are considered to be at will and can be terminated for any reason or no reason at all. This would be particularly the case with respect to a probationary employee. Should you terminate a non performing employee, be sure that all instances of non performance are well documented and during termination I would advise not to be too specific as to the reason. If terminating while on probation I would merely state that she is being separated because of not being a good fit or that it's just not working out. These reasons would not preclude you from substantiating those reasons with evidence of her non performance should the issue arise in the future.  Bear in mind all we can do is advise you as to whether we believe she would have an actionable claim should you terminate, and under the circumstances you describe I think not. However, anyone can bring a lawsuit and should that occur just be sure you have ample documentation to support your decision................Stephan Math Esq, smesq1@aol.com    ... Read More