Following are answers to frequently asked questions the attorneys at Coast Employment Law often hear from southern California employers and employees. If you have other questions or need help with an employment-related legal matter in and around Orange County, or if you would like to discuss ways to keep your business in legal compliance and away from employment disputes, contact Coast Employment Law in Tustin for a free consultation.
When is the workplace considered a “hostile environment” under sexual harassment law?
The key components of a hostile environment sexual harassment claim are 1) unwelcome conduct, 2) of a sexual nature, 3) that is so severe and pervasive that it creates a hostile and intimidating work environment. Such conduct could include groping and suggestive comments, jokes or taunts, graffiti, drawings, posters and more. Employees should speak up whenever they feel they are subjected to such unwelcome conduct, and employers should be sure to have a policy in place so workers know whom to go to when they need to complain about another worker or supervisor.
Is it legal to fire older workers and replace them with younger ones, when the purpose is to have a cheaper labor force and save the company money?
The Age Discrimination in Employment Act (ADEA) protects covered workers 40 years old or older from any adverse employment action taken on the basis of age. Whether it is legal to fire a more expensive older worker in order to replace him or her with a less-expensive younger worker depends upon several factors, such as the vesting of pension benefits or employer-sponsored health insurance, so it is worthwhile to talk to an attorney if you are considering or questioning such a decision.
Can an employee sue an employer for discrimination or harassment without filing an EEOC claim first?
In most cases, it is necessary to first make a claim to EEOC or the California Department of Fair Employment and Housing (DFEH). After the government agency has had an opportunity to investigate and enforce the complaint themselves, they may issue a right to sue letter giving the worker the ability to sue in state or federal court. In some situations, such as Equal Pay Act claims, it is possible for an employee to file a lawsuit without first making an administrative complaint.
Does the Fair Labor Standards Act (FLSA) require employers to give meal periods and rest breaks?
No. The FLSA only establishes a federal minimum wage and the requirement to pay overtime (time-and-a-half) for more than 40 hours worked in a given workweek. States may go beyond the federal requirements, however, and California is one of the states that does so, requiring a higher minimum wage as well as overtime pay when an employee works more than eight hours in any workday (and double time for more than 12 hours), in addition to the federal 40-hour rule. Additionally, California labor law requires employers to provide a 30 minute meal period in a five-hour shift or two meal periods if the shift is more than ten hours long. State law also requires rest periods of ten minutes for every four-hour period worked.
There are many exceptions and technical details to consider regarding overtime, rest periods and meal breaks. If you are an employer unsure how to comply with the law, or an employee who thinks you may be denied your due wages or breaks, contact Coast Employment Law for a detailed analysis of your particular situation.
Are salaried workers exempt from overtime?
Being paid on a “salary basis” (currently at least $455 per week) is only one facet of being exempt from overtime as a professional, executive or administrative employee. Each category of exemption has its own additional criteria regarding the work performed and the level of supervision or independent judgment required. The actual work performed and not the job title or job description is what matters.
Are undocumented workers (illegal aliens) entitled to overtime?
Yes. California law does mandate that undocumented workers be paid at least the minimum wage as well as overtime when applicable. Undocumented workers are entitled to file a wage claim with the Labor Commissioner and will not be questioned about their immigration status in order to process the claim. Immigrant workers may also file employment discrimination claims without having to disclose their immigrant status.