Dedicated Employment Lawyer Answers Frequently Asked Questions about California Labor and Employment Law
If you are experiencing discrimination at work or believe your workplace is unsafe, you may want to take action; but at the same time you may not want to jeopardize your job or risk retaliation from your boss. It is important to know that most employment discrimination, workplace safety and wage and hour laws protect workers from retaliation for filing a complaint. Below are more answers to frequently asked questions about California labor and employment law. If you have other questions or need help with an employment matter in California, contact Mr. Dreger for a free consultation about your situation.
Q. What rights do I have as an at-will employee?
A. At-will employment means that you can be fired at any time and the employer doesn’t have to give you a reason for the discharge (likewise, you can quit at any time without giving your employer a reason). However, you still have important employment rights, even as an at-will employee. For instance, you are entitled to be paid at least the minimum wage as well as overtime when applicable. And you have the right to be free from unlawful discrimination and wrongful discharge. If you think you may have been wrongfully terminated, contact Mr. Dreger for an evaluation of your case. You may not even be an at-will employee, depending on the facts surrounding your employment.
Q. How do I report an unsafe condition at work?
A. You have the right to file a confidential complaint about workplace safety and health hazards. You can call your local Cal/OSHA district office or send an email if you cannot call. You can find your local office here, along with the type of information you will need to have ready. You may also be able to file an OSHA complaint online and request an inspection of your workplace. Employers can request a free consultation from OSHA or Cal/OSHA on workplace safety without any adverse consequences.
If you had to quit or were let go following a workplace injury or occupational illness or disease, contact Mr. Dreger to determine your next steps.
Q. What is a “hostile environment”?
A. The elements of a hostile environment/sexual harassment claim are unwelcome conduct of a sexual nature that is so severe or pervasive that the work environment has become intimidating, hostile, offensive or abusive. Not only must you personally feel that the environment is hostile, you must also show that the workplace would be considered a hostile environment by a “reasonable person” objectively viewing the situation.
Hostile environment is not limited to sexual harassment claims. A hostile environment can be also created by severe or pervasive unwelcome conduct based on race, color, religion, pregnancy, national origin, age, disability and genetic information.
Q. How do I file an employment discrimination lawsuit?
A. Before you can sue your employer, you must first file a complaint or charge with the federal EEOC or the California DFEH. The agency then has a period of time to investigate your complaint and decide whether to take action against the employer. If they don’t, you will be issued a “right to sue” letter giving you the green light to file a lawsuit. Deciding whether to file your complaint with EEOC or DFEH depends on your particular case; an employment law attorney can help you decide which is the better strategy.
If your claim is wage related, you can file a lawsuit without first filing an administrative complaint. You should talk to a lawyer about which move is better in your case.
Q. How do you tell if a worker is an employee or an independent contractor?
A. This is an important question, since employees are entitled to overtime and other wage and hour legal protections, but independent contractors are not. Employers have struggled to properly classify workers under complicated, multi-step tests developed by the California courts. The newest test to determine whether an employee is an independent contractor is the “ABC test” handed down by the California Supreme Court in its Dynamex decision in April 2018. To classify a worker as an independent contractor, Under this test, employers need to prove the following:
Autonomy: Is the worker free from control by the company under the contract for hire and while performing work?
Business: Is the task performed by the worker outside of the company’s normal course of business?
Custom: Is the work performed customarily done by the worker through an independently-established trade or occupation?
Whether this test will be easier to follow than previous tests remains to be seen. If you are an employer or worker struggling with a classification issue, contact Mr. Dreger for a thorough, in-depth analysis and opinion.