Is Your Employer Breaking The Rules?

The Marble Team

Is Your Employer Breaking The Rules?

Employment Law
| 5 min

Work is where we likely spend most of our active hours outside of home, and accordingly, it often becomes a familiar place where we feel comfortable working and socializing with our peers. 

Although many employers foster a positive environment where like-minded individuals come to thrive together to reach common goals, not every employee always has a positive experience. Moreover, some employers can make the workplace hostile or unfriendly, which can also have a negative effect. Still, whether violating employee rights or engaging in a prohibited activity, employers can be held accountable.

In California, the law is very clearly on the side of employees, and the state features some of the most robust pro-worker protection in the country. Still, this isn’t always enough to persuade employers to respect employee rights. Moreover, you might’ve been witness to an abuse of the law and not known how to react.

Before confronting your employer about any violations, it’s best to familiarize yourself with the most common infractions along with the proper steps for fighting back.

7 Common Employment Violations

There are many different ways that employers in California can cross the line at their employees’ expense. Among them, here are the seven of the most common violations 

1. Sexual Harassment

This area has been given more spotlight in recent years as laws encourage victims to come forward. Sexual harassment in California equates to any unwanted advances, office behaviors, visual or verbal remarks of a sexual nature, or based on the recipient’s sex that creates a disrespectful, unfair, and uncomfortable work environment.

Before escalating the matter, it’s always essential to carefully document each incident along with the time, date, and people involved. Be sure also to review any manuals or company policies regarding sexual harassment to understand the process for filing a complaint. Most importantly, always keep a copy of your complaints. 

If the situation goes unresolved, it’s best to bring these complaints to multiple state agencies that handle employment before enlisting a lawyer’s services to fight back against this harmful practice.

2. Wage Violations

Among the most common wage violations in California, the one that rises to the top involves not paying employees the minimum wage ($13 per hour for companies with 26 or more workers, $12 for companies with less than 25 employees as of 2020, and $15 in certain counties/cities). Other common violations include not delivering paychecks on time and not compensating for overtime for non-exempt employees (exempt employees are usually salaried and not hourly). 

Equal pay may also fall under this category. According to the law, an employer cannot pay employees differently based on age, race, or other factors unless there is a qualified reason for doing so. If you believe your rights have been violated, you can bring forth action to the Division of Labor Standards Enforcement

In parallel, it makes sense to gather a qualified labor attorney’s advice to understand if opening a case is worthwhile. Be sure to document any inconsistencies and bring any evidence that supports your claim to ensure the best outcome. 

3. Discrimination

Though an umbrella term for many more types of offenses, discrimination in the workplace can be applicable nearly everywhere, from advertising a new position to hiring practices, promotions and career advancement opportunities, wages, and even working conditions. 

Any effort by an enterprise to discriminate against the multiple protected classes defined in California law, including race, religion, color, gender, marital status, sexual orientation, medical conditions, and others, can be punishable. 

The California Fair Employment and Housing Act (FEHA) covers this area specifically. Violations should first be reported to the Fair Employment and Housing Council to investigate the issue. If they find wrongdoing and issue a “right to sue” letter, a discrimination case can proceed in court. An experienced employment lawyer can help you navigate the situation with ease.

When discrimination includes wage violations, employees are protected under California’s Fair Pay Act rules, which are an extension of the equal pay rules discussed in the wage violations section. Wage discrimination can take several forms, but the most common cases involve paying two people working the same job differently because of gender. 

This is illegal in California, and if it arises, employees can take employers to civil court to resolve the dispute. Those employees who’ve been discriminated against and even let go are entitled to reimbursement for wages and benefits not paid, reinstatement if they’ve been fired, and other forms of relief. However, action must be brought within one year of the violation to be valid.

4. Retaliation

If an employee happens to witness and report workplace violations, an employer has no grounds to fire or retaliate against the employee in many situations. Some of the cases where these protections help include reporting unlawful activity, requesting reasonable accommodations for religious beliefs or a disability, filing a whistleblower claim, and raising workplace harassment or discrimination issues.

While businesses in California cannot legally fire someone for highlighting these issues, they sometimes make retaliatory moves. These may include preventing promotions and raises, adding higher workloads, negative feedback, and less desirable working conditions. 

Fortunately, employees that uncover or are subject to retaliation have many laws to back their cases in court, including Labor Code 1102.5 LC, the California False Claims Act, and the Fair Employment and Housing Act (FEHA). 

5. Misclassification Of Employment

In California, people who perform work for a company can be classified as employees or independent contractors. However, this is a distinction that can be readily abused. 

As home to one of the world’s largest gig economies between famous names like Uber, Lyft, DoorDash, and more, California has faced no shortage of controversy regarding employment classification. Gig workers fought for reclassification in 2020 to gain more protections. They were still left out when Proposition 22 was put to a referendum and passed, maintaining these gig workers’ independent contractor status.

Employees are entitled to many rights that don’t necessarily apply to independent contractors, such as paid breaks and other valuable privileges like a minimum wage and overtime pay. Even though each group may be paid for the same work, they aren’t necessarily entitled to the same benefits, which is where problems arise.

In an attempt to circumvent the law, some companies will misclassify an employee as an independent contractor to avoid paying all the benefits and other financial obligations that an employee is entitled to. For employees in this situation, being misclassified means an opportunity to fight back for lost compensation, break time that wasn’t paid, and other benefits that weren’t received.

6. Criminal Background Check Violations

The Fair Chance Act, also known as the “Ban the Box” initiative, was designed to prevent employers from asking applicants about their criminal history or felony convictions and running a background check before presenting a conditional offer.

If an employer decides to rescind a conditional offer after running a background check and uncovering convictions that influence their decision, the applicant is entitled to notice in several forms. The employer must conduct an individualized assessment to prove the candidate is unsuitable, present its notification in writing along with the convictions that disqualify the candidate, and provide a copy of the report. Afterward, the candidate has a chance to respond before an employer has another opportunity to reconsider their offer or give the final notification.

Employers who fail to follow this protocol can be subject to penalties. Candidates can report these violations to the California Department of Fair Employment and Housing or choose to pursue the employer with a lawsuit directly.

7. Wrongful Termination

California is an employment “at-will” state, which means that many employees and employers have fewer restrictions on terminating a working relationship. In most cases, it boils down to a failure to adequately do the work, habitual neglect of work-related responsibilities, or an inability to handle and complete the job. 

However, just like state laws protect employees against discrimination and harassment, many of the same conditions that would qualify as a violation in those cases extend to terminating an employee. For instance, employment cannot be terminated for filing a whistleblower complaint or highlighting other problematic practices in the workplace.

Moreover, you cannot fire someone for belonging to a protected class. If you feel that your case falls into this category, document the employer’s actions, and speak with a qualified employment lawyer to see if there are legal remedies worth pursuing. Yet, it doesn’t mean that an employer has to give a reason for the employment termination. As long as the relationship hasn’t been terminated for an unlawful reason, it stands to reason that the decision won’t be punishable.

How A Lawyer Can Help You Exercise & Protect Your Rights As An Employee

If you have a documented case of employer abuse and misconduct or witness a violation and have evidence, your first stop should be an experienced employment lawyer. While you can bring forth action against an employer with the numerous California agencies and governmental organizations that handle labor violations, employment lawyers will have a vast knowledge of the law and be able to position your circumstances for a better outcome. 

Remember, not all cases go to court first, and sometimes must be reported to the relevant labor agency or department that handles claims before being escalated to the legal system. An experienced lawyer can easily help you navigate all the ins and outs of these processes. 

The Bottom Line

Whether willful or by accident, employers break the rules all the time. Despite California’s employee-first approach to labor laws, there are still violations that regularly unfold in the workplace. Accordingly, it’s essential to know what qualifies as an offense, where to report unfair practices, and how to escalate the situation depending on the case and its evidence.

While employers may think they have the upper hand, when you’re armed with the right knowledge, ensuring your rights as an employee can mean all the difference when it comes to holding them accountable for their actions.

Image credits: Drobotdean, luis Molinero

Dec 30, 2020
The Marble Team