EMPLOYMENT & LABOR LAW

Understanding When to Hire an Attorney for Wrongful Termination, Harassment and Other Situations

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Glossary of Legal Terms

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Key terms and issues in Employment Law
Overview of Employment Law Under California and federal employment law, there are many individual laws and acts that govern employer/employee relationships, rights and obligations. Which laws apply, and their application to a given case is a very complicated issue, so when a case arises it can be beneficial to consult San Diego employment law attorneys who are competent in this area of practice. Employment lawyers in San Diego are particularly invested in the laws that directly impact the millions of employees and employers in Southern California. California Employment Laws The California legislature has implemented hundreds of bills affecting employers and employees. These laws address the issues of working conditions and benefits, labor relations, wages, hours, holidays and other circumstances that affect the employment relationship. Today, California labor laws cover issues including discrimination in all forms and harassment, disability accommodations, wage and hour issues, retaliation, whistleblowing, compensation issues, Labor Commissioner claims, workers’ compensation, State of California disability insurance, paid medical and family leave, required overtime compensation, expansion of apprenticeship programs in California, certification requirements for electricians, and hundreds of other laws that impact workers. Federal and State Labor Laws and Acts In addition to the laws of the state, there are many federal labor laws and acts that govern businesses and workers. The employment lawyers in San Diego have an obligation to understand these legal mandates and communicate how they affect their clients. They must also have a working knowledge of the statutes and regulations governed by the Department of Labor. In other words, in order to provide competent advice to the employee or employer, San Diego employment law attorneys need to demonstrate their ability to understand and apply local, state and federal legal codes. When and Where to File Harassment and Discrimination Complaints Generally, harassment and discrimination complaints need to be filed at the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC).These agencies have different rules and deadlines, but generally an employee must file with the EEOC within 300 days of the harmful act, and at the DFEH within one year of the date of last harm (which may be one year from the date of termination.) If an employee does not timely file correctly with one of these agencies, a claim could be seriously affected. There are other deadlines within which to file lawsuits, but these vary from case to case, depending on the nature of the claims. It is therefore critical to promptly contact an employment attorney to find out what action you need to take. Employer Rights In order to understand employer rights, business owners must educate themselves (or get legal advice) on the many federal and state laws that will impact their business on a day-to-day basis. These laws and regulations are incredibly complex. When a business is new to the marketplace or wants to protect its interests, it may be a good idea to consult with a labor and employment lawyer, who can explain the information in a way that makes sense for the business. The laws may range from what questions are allowable during a job interview and how to pay employees, to what needs to be included in a company manual, and appropriate steps to take when planning to dismiss an employee. There are many “Human Resources Consultants” that offer assistance, but these consultants have a wide range of competency. It is critically important that every employer knows their rights and to have the option of getting assistance from a labor and employment attorney. Laws that California Employers May Need to Know to Protect Their Rights ADA or Americans with Disabilities Act of 1990 The Fair Labor Standards Act California Labor Code and Industrial Wage Orders The Immigration Reform and Control Act FMLA (the Family and Medical Leave Act) and CFRA (California Family Rights Act) The Civil Rights Act of 1964, particularly Title VII Pregnancy Discrimination Act of 1978 (an amendment to Title VII) The Equal Pay Act of 1963 The Age Discrimination in Employment Act of 1967 California Fair Employment and Housing Act Laws and cases governing employees versus independent contractors PAGA (Private Attorney General Act); Labor Code 2699, et seq. With all of these often interrelated rules and regulations, it is easy to see that employers would be wise to seek the assistance of a labor and employment attorney throughout the time they plan to remain in business, to ensure that they operate within the law, have legal and proper employment policies, and prevent possible legal claims and lawsuits against them. A labor and employment lawyer can help: Review, draft and update employee handbooks, manuals and policies and employment contracts. Assist with federal and state wage and hour law issues and claims. Represent employers before the EEOC or DFEH. Represent employers in unfair labor practice proceedings. Educate and train management and employees with respect to discrimination, harrassment, record keeping, discipline, grievance procedures and investigations.
Do you need an Employment Lawyer?
Do You Believe You Have Been Wrongfully Terminated from Your Job? This may occur when an employer has discharged or laid off an employee in violation of a legal right of the employee, sometimes based on an employer/employee contract. In extreme circumstances, an employee may quit and still bring a claim for wrongful termination (“constructive discharge”). Sexual Harassment Claims Unwelcome sexual advances or conduct on the job that creates an intimidating, hostile or offensive working environment. The unwelcome sexual conduct can be from a supervisor, coworker, independent contractor or client. Sexually harassing behavior ranges from repeated offensive jokes or innuendos, inappropriate touching and requesting sexual favors for pay or promotions, to outright sexual assault or a workplace full of pornography. Once a claim is made, employers are legally required to conduct an investigation to determine if discrimination or harassment occurred and prevent future discrimination or harassment. What Is Workplace Discrimination? According to attorneys practicing employment law, workplace discrimination occurs when an employee suffers unfavorable or unfair treatment due race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person or receives unequal compensation for equal work based on gender or race. If you experience any type of employee discrimination, a lawyer may be able to help you with your case. Do You Have a Wage & Hour Claim? Employee lawsuits can arise from unpaid overtime or commissions, uncompensated meal or rest breaks, minimum wage or other violations of state or federal wage and hour laws. These rules are painfully complex. Many claims occur as a result of employers misclassifying employees as independent contractors. Are You Aware of Your Rights if You Are under a Union Contract? These cases involve the rights under a union contract or a local union’s failure to represent a member’s interests fairly. For example, an employer cannot retaliate against an employee for union activities, and a union agent cannot threaten an employee with potential loss of a job if the employee does not support union activities; otherwise, employee discrimination lawyers may bring a case against the employer. Do You Have a Safe Workplace? OSHA, the Occupational Safety and Health Administration, and its California equivalent, CALOSHA, set and enforces particular standards for safety. If employers fail to comply with these requirements, causing risk or harm to employees, then lawsuits may hold them liable for negligence. Workplace lawyers may bring a case citing OSHA requirements. Unemployment Insurance Appeals or Complaints Unemployment insurance is income that is available if you lose your job through no fault of your own. To qualify for unemployment insurance benefits, you must complete the Employment Development Department (EDD) application and be unemployed or underemployed. You need to show a certain level of recent work history during the 12 months before the quarter in which you are applying, have the ability and willingness to take a new job and be looking for a job. The California Employment Development Department (EDD) will give your former employer the chance to oppose or contest your application. This may result in initial denial of your claim, and you have the right to file an appeal. Employees are entitled to an appeal hearing to dispute an employer’s denial for unemployment benefits. LRIS workplace or employee discrimination attorneys may assist you with your appeal. Do You Believe You Have Been Reprimanded for Being a Whistleblower? If an employee reports, or refuses to participate in, unethical or illegal practices of an employer, they may not be reprimanded, suffer other adverse employment actions or be terminated/fired as a result of their actions. This may also apply to an employee who brings an action against the employer for any of the above listed issues Employers: Do you need an Employment Lawyer? Employment law attorneys offer the following types of services: Employment agreements Employee Handbooks, policies and procedures Sexual harassment training Employee, Supervisor/Manager, and Executive training and counseling Corporate compliance with federal, state and local laws Employee complaint investigations Termination and discharge, including severance pay issues and executive contracts Representation for Labor Board complaint filed by an employee Served with a wrongful termination lawsuit by a former employee or widow.
What to ask your lawyer?
What are my rights in this situation? Do I need an attorney, or can I file a claim elsewhere? Are there other resources available to me? What should I share with my employer?
Disclaimer: The information on this page is to aid your general understanding of general law issues and terms. This information does not constitute legal advice and should not be depended upon for that purpose. Laws are constantly changing and may at any time render the information found here invalid, so you will want to do further research on your own. For legal advice, consult an attorney. If you need a referral to an attorney, contact the SDCBA’s Lawyer Referral and Information Service at www.sdcba.org/ineedalawyer. Updated 3/27/2018

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