Answers To Frequently Asked Employment Law Questions
Every employment law dispute is unique and must be assessed on its own merits. However, there are questions we receive often about the rights of employees and employers. We have provided some of those here.
The attorneys at Jay S. Rothman & Associates welcome your questions about employment law matters. We can assess the facts of your situation during a free consultation and provide a candid assessment of whether legal action is warranted.
What needs to be proven to show wrongful termination?
Like most states, California is an at-will employment state, which means employers can fire or demote employees at any time. However, there are state and federal laws in place that protect employees from being fired in certain circumstances. An employer cannot fire an employee in retaliation for reporting illegal or discriminatory activity. Detailed records of communication between an employer and employee often play an important role in pursuing a wrongful termination lawsuit. If you feel you have been fired unfairly, enlist the help of a knowledgeable employment law attorney as soon as possible.
When can an employer legally avoid paying overtime?
State and federal wage and hour laws set minimum standards for pay, including hourly rate, meal and rest breaks, tips and overtime. In California, nonexempt employees must be paid the overtime rate – 1.5 times their hourly wage – for any hours worked in excess of 40 hours per week. In addition, overtime must be paid for any time worked over eight hours per day, even if the total hours for the week does not exceed 40. There also are rules regarding pay for employees who work seven consecutive days.
The law exempts certain classifications of workers from receiving overtime pay. This includes those who are considered to hold executive, administrative or professional positions. There are legal definitions for each of these terms that an employment law attorney can help you understand. In all three, however, the worker must be paid a weekly salary equal to at least two times the state minimum wage multiplied by 40 hours. Worker misclassification is common. Our experienced employment law attorneys can review the facts of your situation during a free consultation and advise you on whether legal action is warranted.
What are the important differences between being an independent contractor and an employee?
Many employers classify their workers as independent contractors rather than full-time employees in attempt to avoid providing benefits, overtime and certain payroll taxes. In 2019, California lawmakers passed AB 5, which protects workers’ rights, in part by making it more difficult for businesses to classify workers as independent contractors. The law exempts certain types of workers, including investment advisers, barbers and providers of cosmetology services, licensed health care professionals, direct salespeople and architects. There are penalties for businesses willfully misclassifying workers as independent contractors. If you believe your employer has misclassified you as an independent contractor in order to shortchange you on pay or benefits, reach us so we can review your situation and determine if legal action is warranted.
Can an employer run a background check on me?
Employers in California can run background checks on prospective employees, but they are regulated as to when and how they do so. A business must notify a prospective employee before running a background check and receive written permission from the prospective employee before doing so. An employer may not ask for background information based on your ethnicity or race. Also, an employer is required to inform you if anything in a background report results in a decision to not hire you.
Can my employer make me take a drug test?
California law allows private companies to require that prospective employees be drug tested as long as they notify applicants that drug testing is part of the process and there the job is offered contingent upon passing the drug test. Government employers also can require drug tests to job applicants, but they are more limited in what they can require of current employees. As a safety measure, federal and state laws actually require drug and alcohol testing for workers in the commercial transportation industry. In some situations, workers may have a wrongful termination lawsuit if they are fired for refusing to submit to a drug test. Confer with a knowledgeable employment law attorney to protect your rights.