What are the most Frequently Asked Questions about Employment Law?


What is the difference between an Employee and an Independent Contractor?
An employee is anyone who renders service to another under the control of the one to whom the service is rendered. Typically, an employee has a boss, works for one entity, and receives a paycheck and benefits. But if you are in business for yourself, advertising your services to the public, with an investment in equipment, paid by the job, and can do your work any way you want, you are likely an independent contractor. Your attorney can advise you on your situation. Click here for further information.

What is "Employment at Will"?
Absent a contract, California law presumes employment is "at will", meaning you can quit or your employer can fire you at any time, for any reason, or no reason, with or without notice. However, the law places significant limits on an employer's right to terminate employment. Anytime you're fired, your first interview should be at my office to see if you can sue.

When is termination unlawful?
The list of prohibited reasons for termination are many, and include unlawful discrimination, a refusal to engage in illegal conduct, reporting violations of the law to a government agency, pregnancy, taking time off for court appearances and jury duty, refusing a polygraph, garnishments, and filing bankruptcy, among others. We encourage fired employees to pursue all legitimate claims. The idea is to get you properly compensated and to change employer conduct. Click here for further information.

What is Unlawful Discrimination?
An employer can discriminate between employees but only if it is not for a prohibited reason. Treating people differently due to race, religion, gender, physical or mental disability, medical condition, age if over 40, marital status, or sexual orientation, is prohibited.

Isn't discrimination hard to prove?
The law recognizes that direct evidence of discrimination seldom exists. Nearly always, it is proven by inference. The plaintiff must show she is a member of a protected class (i.e. a woman), that she was available and qualified, that she suffered an adverse action (fired, not hired, not promoted) and that a non-protected class member received favorable action (was retained, hired, promoted). The burden then shifts to the defendant-employer to state a legitimate business reason for the decision. If the employer cannot, plaintiff wins. If the employer can, the burden shifts back to the plaintiff to show the real reason was discrimination, often done by showing the employer's stated reason was untruthful. Your attorney will investigate and analyze your claim to see if it is worth pursuing.

What is sexual harassment?
It is unwelcome sexual conduct. There are two kinds: "quid pro quo", meaning, you must sleep with your boss to get hired, receive a raise or promotion, or keep your job; and "hostile environment, meaning your supervisor (or co-worker) pesters you for sex after you've said no and won't leave you alone, or makes your life miserable because of your gender. California law lets you sue the harasser as well as the employer. We know how to put these cases together to get money if the facts are there.

Can an employer say I'm too old to work?
Usually not. Persons over 40 years of age are a legally protected class. If you have the ability and qualifications to do a job, an employer cannot refuse to hire you, promote you, or force you to retire because you are certain age. Exceptions exist for certain occupations such as airline pilots, university professors, and top executives of large companies. We are dedicated to a world where learning new skills and productive employment continue for an entire lifetime. We will see to it that grey hair doesn't mean a pink slip.

What if I or an immediate relative is ill or injured?
The Family and Medical Leave Act and its California equivalent require that an employer with 50 or more employees permit you to take up to 12 weeks unpaid leave to recover from a serious illness or injury and to care for seriously ill or injured immediate relatives. Significant restrictions on this right make a consultation with us essential to see if you have a good case.

What if I become pregnant?
Your employer can't fire, demote or harass you, for pregnancy or the condition of pregnancy. Your employer must permit four months unpaid maternity leave. Unless a bona fide business reason exists, your employer must re-employ you in the same or comparable job when you return to work. Also, your employer cannot discriminate against you because you've exercised your right to choose an abortion.

Must an employer accommodate my handicap?
If you are a "person with a disability", meaning you have a physical or mental condition that impairs one or more major life activities, or perceived as such, your employer must make reasonable accommodations. That would include elevators and ramps for wheelchairs, large type books if you are visually impaired, and similar. The Americans with Disabilities Act is quite complicated and requires careful legal analysis of the particular situation. We can tell you if you're protected.

Are Non-Competition contracts enforceable in California?
While many states enforce reasonable non-competition covenants, California takes a very different approach. In California, agreements not to compete after the employment term has ended are generally invalid, except in connection with the sale of a business. Click here for further information.

Can my employer blacklist me?
California law prohibits interference by a former employer with a with a former employee's attempts to obtain new employment. Civil and criminal remedies are available. we can advise you about your particular case.