How Quickly Does an Employer Have to Pay a Terminated Employee?

Employees lose their jobs all the time. Although some must face the unfortunate reality of being unemployed, so long as the employer acted lawfully, an employer has every right to terminate their employees. Nonetheless, the State of California and federal law have specific rules employers must abide by to properly discharge employees and provide them with the proper compensation resulting from that termination. Employees should know their rights under state and federal law to ensure they are appropriately compensated for all hours worked and any additional compensation owed to them.

Timeframe of Final Compensation

California employees are covered under two laws that dictate the rules for payment of an employee’s wages and the organization of hours. These laws include the federal Fair Labor Standards Act (FLSA) and applicable sections of the California Labor Code.

Fair Labor Standard Act

Under regulations created by the U.S. Department of Labor, employers covered under the FLSA are not required to pay employees their final paycheck upon termination immediately. Generally, employers covered under the FLSA will pay employees their final compensation at the end of the most recent pay period when all other employees receive their pay.

Covered employers include employers with two or more employees who earn yearly revenues of $500,000 or more. Covered enterprises also include:

  • Hospitals.
  • Medical care facilities.
  • Nursing homes.
  • Schools and preschools.
  • Government agencies.
  • Enterprises involved in interstate commerce (sale of goods or services across state lines).

California Labor Code

Unlike the FLSA, California maintains much stricter rules for the payment of a terminated employee’s final wages. Under applicable sections of the California Labor Code, terminated employees must receive their final paychecks immediately upon notification of termination. That means when an employee is notified of their discharge from the enterprise, their employer must provide their final check after providing the notification Furthermore, an employer must pay the discharged employee at the place of the employee’s discharge. For example, suppose an employee is a cashier at a grocery store and received their termination notification at the grocery store. In that case, the employee must receive their final paycheck at that grocery store–not another location.

Forms of Compensation Entitled to Employees

Under California law, compensable wages owed to an employee upon their separation from an enterprise include pay for all hours worked; all overtime, time and a half, or double time worked by the employee; and any earned and unused vacation or paid time off (PTO). Employees are not entitled to unused sick time or other compensable time like bereavement leave.

Notification of Departure

Many employees have the ability to terminate their own employment (i.e., voluntarily quitting their position) at any time they choose. However, at-will employees (employees that work for an indefinite period that may be terminated for any lawful reason) that quit their position without providing their employer notice must be paid within 72 hours of notification.

At-will employees who provide at least 72 hours of notice that they are quitting their current position must be paid when their employment relationship with their employer ends. Employees that fail to provide at least 72 hours’ notice may request their final paycheck be mailed to a designated address.

What if an Employer Improperly Withheld an Employee’s Last Paycheck?

Under California law, employers are subject to harsh penalties for improperly withholding an employee’s last paycheck. If an employer does not provide an employee with their last paycheck based on the parameters established under California law, the employer is liable for the unpaid wages. 

Furthermore, the employer will have to pay an additional penalty to the employee based on their average daily pay for up to 30 days after the employer fails to pay. Thus, if an employee’s former employer waited 30 days to pay the employee their final paycheck, they are entitled to 30 days of additional compensation as if they worked that time.

Severance Pay Considerations

Under federal and state law, an at-will employee is not entitled to severance pay upon lawful termination of their employment. However, some employees may be entitled to pay if their employer has a policy that provides employees with severance pay if specific requirements are met. Employees should closely review their employer’s personnel handbooks to determine whether their employer offers severance pay and how to qualify.

Unemployment Insurance

California requires covered employers to carry unemployment insurance coverage if or when employees separate from the enterprise under certain circumstances. An employee is entitled to unemployment compensation unless they fall under one of the following categories:

  1. The employee voluntarily quit their position without good cause.
  2. The employee was discharged from the enterprise because of willful misconduct (an example would be stealing the employer’s property and deviating from the employee’s job duties causing harm to the employer or other employees).
  3. The employee refuses suitable work.

Employees denied unemployment coverage but have reason to believe they might be entitled to compensation should contact an experienced California Wage and Hour attorney.

How Can an Attorney Help My Case?

The California Labor Code levies heavy penalties against employers that fail to pay their employees final wages within the timeframes provided under the law. Every so often, employers will try to withhold wages from an employee’s final paycheck, citing all sorts of misconduct allegedly committed by the employee. Employment attorneys are trained to determine whether an employer has a reasonable basis for their claims or is simply trying to pull a fast one on its former employee.

California law allows employers to provide “good faith” evidence that employees should not be paid their final wages. In some instances, an employee may not be entitled to their final wages because they committed some unlawful action. However, employers will try to withhold wages without any substantial evidence of wrongdoing.

By contacting an experienced California Wage and Hour Attorney, employees can ensure they receive their final paycheck and any damages associated with the withholding of that paycheck. In addition, an attorney can help investigate the facts of the case, notify the employer of the pending dispute, contact the California Department of Industrial Relations (DIR) of the employer’s potential misconduct against the employee, negotiate on the employee’s behalf, file a legal or administrative claim for wages, and engage in settlement discusses to ensure final wages are paid.

Why Mediation May Be the Best Route for Solving Your Business Dispute

In many parts of the world, mediation is known as conciliation. It has historic routes within the diplomatic arena. Interest in mediation has risen dramatically in recent years in the commercial world. Part of the reason for this increase in interest is unhappiness with the cost, delays, and length of the court process. The benefits of mediation, notably its appeal as a procedure that gives parties full control over both the process to which their dispute will be submitted and the outcome of that process, have sparked increased interest.

Mediation has a very high success rate in finding a result that is acceptable to both sides of a dispute when it is implemented. Some people are hesitant to use mediation since it is a very unstructured method, and they are afraid of not knowing what to anticipate. An attorney can help navigate you through the process of mediation, if you feel that it is a viable option for your business dispute. If you are a business owner concerned about the outcome of a disagreement, mediation could save you a lot of time and money, as well as help you maintain a vital business relationship by allowing you to work through the conflict with an agreeable resolution.

What is Mediation? 

Mediation is a process in which the parties address their disagreements with the help of a skilled neutral third party who helps them reach an agreement. It could be a casual gathering of the parties or a formal settlement conference. The disagreement could be pending in court or could be filed in court in the near future, or not have any intentions to use the court system. 

Disputes in commercial transactions, personal injury, construction, workers compensation, labor or community relations, divorce, domestic relations, employment, or any other situation involving simple procedural or evidentiary concerns are appropriate for mediation. Most business disputes will use mediation to resolve their issues. The parties’ attendance at the mediation session is entirely optional, unless otherwise required by statute or contract clause.

A good mediator has tolerance, tenacity, and common sense. The mediator is merely a facilitator with no authority to resolve the disagreement. As the mediator progresses through the process, the parties will construct a resolution. Although the mediator is an attorney in many jurisdictions, he or she cannot provide legal advice while acting as a mediator. The mediator’s subject-matter expertise, on the other hand, may be useful to the parties in drafting and framing the mediated agreement, or in situations where the parties are amenable to an impartial case evaluation.

Mediation vs. Arbitration

Arbitration, like mediation, relies on a neutral third party, the Arbitrator, to resolve disputes between parties outside of the courtroom. Unlike mediation, however, the Arbitrator acts as a private judge, hearing evidence and issuing findings to determine the dispute’s conclusion. Thus, the private judge controls the process and the outcome in arbitration, whereas the disputing parties control the process and the outcome in mediation.

Most arbitrators are willing to work around the parties’ schedules and demands. Although arbitration is usually less formal than a courtroom trial, both parties must follow a series of processes as they prepare for the hearing. In most circumstances, the arbitrator’s decision is final and binding on both parties. After a binding arbitration, there is virtually little room for appeal.

Mediation and arbitration can be used together. Typically, most business disputes will either make mediation mandatory or strongly suggest it as a first step. The dispute is then brought to arbitration if a settlement is not reached within a specified length of time (it is advised that the parties arrange for either 60 or 90 days), or if a party refuses to participate or continue to engage in the mediation (or, if the parties so agree, through expedited arbitration). 

The benefit of the combined procedure is that it provides an incentive for both parties to make a good faith commitment to the mediation process, because the consequences of failing to reach an agreement will be more tangibly measurable in terms of the financial and management commitment that would be required in the subsequent arbitration procedure.

Benefits of Mediation

A party to a dispute may choose mediation over traditional litigation or other kinds of alternative dispute resolution for a variety of reasons, including: 

  • Affordability
  • Participation in the resolution of the conflict
  • Preservation of the relationships between the parties 
  • Private sessions
  • Prompt settlement 
  • Secrecy

Mediation is less expensive than litigating a conflict, both in terms of time and money. The hourly rate of a mediator is typically lower than that of a lawyer. A decision to mediate or a court order to mediate can usually be scheduled within days or weeks.

Mediation is particularly useful in business disputes because it is confidential, informal, quick, and inexpensive. Additionally, the parties like having a tighter grasp of controlling the situation and dispute resolution.

Is Mediation Binding? 

Mediation is a non-binding practice. This means that even if parties agree to submit a disagreement to mediation, they are not obligated to continue the process after the initial meeting. In this approach, the parties are in charge of the mediation at all times. The process’s continuation is contingent on their continued acceptance of it.

Due to the fact that mediation is non-binding, the parties cannot be forced to make a decision. In order for a settlement to be reached, both parties must agree to accept it voluntarily. The mediator, unlike a court or an arbitrator, does not make decisions. Rather, the mediator’s responsibility is to assist the parties in making their own choice on a dispute resolution.

Mediation is a private and confidential process. Confidentiality encourages frankness and openness in the process by ensuring the parties that any confessions, proposals, or settlement offers made during the mediation process would have no lasting implications. In general, they cannot be used in later litigation or arbitration.

However, when both parties sign the agreement at the end of meditation (if they choose to do so), it becomes a legally enforceable contract and therefore binding. If a settlement cannot be reached through mediation, the parties reserve the right to pursue another method of alternative dispute resolution (ADR) or to take their dispute to court.

Contact Perkins Asbill Today

If you are interested in learning more about alternative dispute resolution or you believe you are involved in a business dispute that could be resolved through mediation, you should contact an experienced attorney today.

Perkins Asbill’s Sacramento business litigation attorneys have more than 30 years of experience navigating the complexities of the various alternative dispute resolution process, including mediation. To get started on your case or discuss your options, contact (916) 446-2000 for a discreet consultation.

Seven Common Signs of Gender Bias in the Workplace

Bias may be prevalent in almost every facet of our lives. Biases can lead to preconceptions against others, resulting in severe inequities between different demographic groups. While there are numerous types of bias, this article focuses on the common signs of gender bias and how it affects the workplace. The tendency to favor one gender over another is known as gender bias.

Perkins Asbill is located in Sacramento focusing on employment law and business litigation. Your rights are important to us. Protecting those rights frequently necessitates the assistance of a genuine and devoted legal professional. Our employment law and business litigation attorneys at Perkins Asbill are here for you if you have been subjected to any signs of gender bias in the workplace. 

The following is a list of the seven most common signs of gender biases that occur in the workplace.

1. Feedback and Suggestions: Males are acknowledged over females. 

In many instances, women in mid- or senior leadership positions find that their proposals and feedback during meetings are ignored. When a male coworker makes the identical suggestion, however, he will be recognized and rewarded for it. When a male is acknowledged over a female for the same suggestion, this is an implicit sign of gender bias. 

Additionally, when women are continually interrupted or their suggestions are overheard, this represents another form of unconscious gender bias in the workplace. According to a George Washington University research, men interrupt women 33 percent more frequently than men.

2. Glass Ceilings: Promotions and other advancements are affected by gender bias.

Women are unable to flourish in their careers due to these differences in opportunities, and they are unable to earn the same amount as males. Women encounter impediments at every step of their employment, putting them at a disadvantage in terms of job possibilities, mentorships, promotions, and salary hikes.

Assuming equal talent, experience, and other credentials, men and women should have equal opportunities to ascend the corporate ladder. When an employer fails to give equal opportunities for advancement in the workplace due to gender, this is a display of bias. 

3. Interview Questions: Interviews can be unconsciously gender biased. 

When interview questions are not standardized, interviewers may offer inquiries that are prejudiced depending on the candidate’s personality, experiences, and even gender.

Some recruiters try to acquire a sense of a woman’s family situation or plans, for example, because they believe she is “too family-oriented” to completely commit to a company, they may not hire or give her certain advancements. When interviewers’ questions become overly specific to someone’s life or when a question would not be appropriate to ask both genders, then this is an example of gender bias.

4. Outdated Views: Women must prove themselves more than men.

Some businesses still have archaic ideas about what constitutes suitable male and female behavior, i.e., attire, assignments, behavior, and responsibilities.

You may have difficulty asserting yourself and remaining likeable in the job as a woman. You are well aware that if you are overly considerate, your coworkers may take advantage of you. You may be ostracized if you are aloof or brief with your responses. Having to deal with this and your work can be difficult. Being aware of certain gender bias situations and calling attention to them can help the flow in a workplace. 

5. Parental Status: A worker mother’s commitment to the company is questioned.

In the workplace, we have seen unequal pay and perks, as well as differences in men’s and women’s expectations. These disparities are much more pronounced and shocking for working mothers.

There are women who work in environments where their bosses question their dedication to their jobs if and when they have children. This form of prejudice is based on the misconception that moms cannot work outside the home because they must care for their children. Men are not asked the same questions, which is inherently gender biased. 

6. Positional Bias: People are assigned to specific roles solely based on their gender. 

If all of your receptionists are female and all of your maintenance workers are men.  This is an example of positional prejudice, in which people are placed in positions based on gender preconceptions.

Gender bias can be found in even the most commonplace of job descriptions, as well as in the positions themselves. Due to language being fundamentally gendered, adjectives like confident, decisive, forceful, and outspoken have been proven to attract male applicants while discouraging female candidates.

7. Unequal Pay: Discrepancies in compensation are reflected through gender bias.

If you are in the same role, with the same amount of experience as a person of the opposite gender and you are receiving unequal pay, it is likely that you are experiencing gender bias. 

Pay disparities between men and women exist all across the world, including in the United States. The global gender pay gap spans from 3% to 51%, with a global average of 17%, according to official data collected by the International Trade Union Confederation (ITUC) as cited by the International Labour Organization.

According to research, in the United States, pay gaps between Latina and Black women are the largest (58 percent of white men’s hourly earnings) and the second-largest (65 percent, respectively), whereas white women had an 82 percent pay disparity. These figures directly show how gender bias affects compensation in the workplace. 

Contact Experienced Employment and Business Litigation Attorneys Today

Whether the signs of gender bias in your workplace are conscious or unconscious, they can become a problem, nonetheless. As noted above, gender bias is seen through almost all facets of the workplace, through pay, promotions, positions, parental status, views, and leadership. 

If you suspect that you have been the victim of workplace gender discrimination or gender bias, you should contact an experienced employment and business litigation attorney. The practice of law, in our opinion, is more than just an intellectual exercise. We assist real people with real issues. Every instance is an opportunity to make a difference.

For more information about the business and employment law services of Perkins Asbill, please contact us at 916-446-2000. Our Sacramento office is conveniently located on the Capitol Mall, and we serve clients throughout Northern California.

The Types of Breach of Contract You Should Be Aware Of

In the business world, particularly for those who deal with a lot of contracts with vendors, employees, or even customers, it is only a matter of time before someone fails to meet the requirements of the contract. While the reasons why one party in the agreement was unable to hold up his or her end of the bargain are endless, the ways in which a breach of contract can occur are not. Read on for more information about the four types of breach of contract you should be aware of.

What is Breach of Contract?

A contract is a legal document that requires each party entering into an agreement to meet certain obligations. A breach of that contract occurs when one party fails to meet the contractual provisions. Because the contract is legally binding, the first step in the process of obtaining compensation for the losses you experienced as a result of the breach is by determining that a breach did, in fact, occur.

Four Types of Breach of Contract

There are four main types of breach of contract, as listed below.

Actual Breach of Contract

An actual breach of contract occurs when one party in the contractual agreement fails to meet the provisions of the contract. This type of breach has already occurred, meaning that the party who breached the contract has already failed to fulfill the provisions of the agreement by the due date or the duties have been fulfilled incompletely or improperly. There are two types of actual breach of contract:

  • Actual contract breach during the course of performance refers to the failure to meet the provisions of the contract or to satisfy the contract in accordance with the other party’s terms.
  • Actual contract breach due to late performance refers to a party failing to meet the provisions of the contract by the deadline to do so. Because the party missed the deadline that was spelled out in the contract, the other party is no longer bound to the provisions of the contract either, though may agree to continue to honor the provisions of the contract and accept the work late if time was not of the essence with the project.

Anticipatory Breach of Contract

An anticipatory breach of contract can occur even before the deadline on which the services or product was due if the party tasked with performing the service or creating or delivering the product states that he or she is not going to complete his or her obligations under the contract by the applicable deadline. While evidence of this type of breach often includes one party stating to the other that he or she does not intend on delivering on the terms of the contract. However, it can also be proven if one party can show by the other’s actions that he or she has no intention of honoring the contract. 

Material Breach of Contract

A material breach of contract is a failure to perform the obligations of the contract in which the failure strikes so deeply at the purpose of the contract that it renders the contract irreparably broken and unenforceable. An example of this type of breach would be if you were to contract with a home builder to build your home for you and the builder failed to meet his or her obligations so completely that not only did you not get a house that was built to your specifications, but no house was built for you at all. Individuals who have been on the receiving end of a material breach of contract can seek compensation for all direct and indirect losses they incurred as a result of the other party’s failure to perform.

Minor (Partial) Breach of Contract

A minor, or partial, breach of contract occurs when the deliverable aspects of the contract were eventually honored, but the party failed to meet some sort of obligation. Using the home builder scenario once more, if you hired a person to build a home for you according to your specifications, and the builder did build the home but was late in completing the project and several of the rooms were painted a different color than what you had requested, these would be considered minor or partial breaches of contract. With this type of breach of contract, the claimant can seek compensation for any financial losses that occurred as a result of the breach, such as the cost of paint and hiring someone to paint the room as specified, or two months worth of rent that was incurred because the home was not finished by the due date specified on the contract.

How to Prevent a Breach of Contract

One of the ways to avoid breaches of contract that can result in a loss of money and time is to ensure that the contracts you make and enter into with others are legally enforceable. An experienced contract lawyer can look over the provisions to ensure that language is clear and that you have a complete understanding of what your obligations are as well as what the other party’s obligations are to you.

It is also important that, when you enter the agreement with the other party, the other party is aware of your expectations for the project through a thorough handover process in which these expectations are gone over with both parties completely. Once the contract has been signed, regular monitoring of the performance of the contract is necessary to ensure that the provisions are being met while there is still time to address concerns that each party might have with their ability to meet the requirements. 

What Happens if a Contract is Breached?

If a vendor, employee or customer has breached a contract, you can seek recovery of your financial losses directly related to the breach as well as other losses in some cases. An experienced contract lawyer from Perkins Asbill can help you understand your legal options. We have more than three decades of experience in business and employment law. Contact us online to learn more about your options or by calling 916-446-2000.

Are Non-Compete Agreements Enforceable in California?

Generally speaking, non-compete agreements (also sometimes called non-competition agreements, or simply non-competes) are not enforceable in California against former employees. However, those agreements can be enforced against others, including former business partners, former members of a limited liability company, and parties to the sale of a business.

In addition, in some circumstances California courts may enforce non-solicitation and non-disclosure agreements, which can sometimes limit an individual’s future employment prospects. 

Here’s an overview. 

California’s General Prohibition on Non-Competes for (Ex-)Employees

A non-competition agreement, as its name implies, is a contract restricting someone’s ability to compete with a business, usually after termination of a relationship with that business. 

In most U.S. states, employment agreements routinely contain non-compete provisions. The ostensible purpose of a non-compete is to shield an employer from the expense of training an employee, only to have the employee quit and put those skills to work for a competitor. Courts in most states will generally enforce a non-compete so long as it is reasonably limited in its subject-matter, geographic scope, and duration, and provided it serves a legitimate business purpose. What constitutes a reasonable limitation and a legitimate purpose varies from state-to-state and case-to-case.

California, however, is different. Here, state law effectively bans agreements not to compete between employers and employees. California Business and Professions Code (BPC) §16600 states, in no uncertain terms, that: 

Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

California courts have consistently interpreted this statutory language to mean that, by-and-large, agreements restricting employees from competing with their former employers constitute unreasonable restraints on trade, and are void. 

Non-Competes Allowed Against Others

As the proviso “Except as provided in this chapter” suggests, however, BPC §1600 is not absolute in its ban on non-competes. It allows for exceptions, three of which (found at BPC §§16601, 16602, and 16603) have particular significance in the context of employment law.

Partnerships 

In certain circumstances, California law enforces non-competes in the context of a business partnership. In anticipation of a partnership dissolving or a partner leaving a partnership, partners can agree “not [to] carry on a similar business within a specified geographic area where the partnership business has been transacted, so long as any other member of the partnership, or any person deriving title to the business or its goodwill from any such other member of the partnership, carries on a like business therein.” 

So, for example, a partner in an accounting firm may agree not to compete with that partnership in the geographic area where the partnership has continued to do business, if she chooses to leave and start her own accountancy. The partnership can enforce that obligation against its former partner, even though it could not enforce an identical restraint against a former employee. 

Limited Liability Companies (LLCs)

Similar to partnerships, California statutes also allow for enforcement of non-competes against former members of a limited liability company (LLC). The law permits non-competes entered-into in anticipation of dissolution of an LLC or a member’s interest in it, restricting a member’s ability to compete with another member or anyone carrying-on the LLC’s business, in a geographic area where the LLC has done and continues to do business. Notably, this exception might permit enforcement of a non-compete against an employee who was also an LLC member, provided the restrictions of the agreement are tailored to that person’s role as a member. 

Sales of Businesses or Interests in Businesses

In connection with the sale of a business (including its goodwill), or the sale of someone’s interest in a business, the parties to the sale can agree that the seller will not compete with the business in the geographic area where the business has done and continues to do business. This exception to the prohibition on non-competes applies in the context of the sale of a partnership interests, LLC membership interests, capital stock in a corporation, and a subsidiary of a business entity. As above, this restriction could apply to a former employee who owned and sold interests in a business, provided the restriction is appropriately tailored.

Enforceability of Non-Solicit and Non-Disclosure Agreements

Non-competes often go hand-in-hand with two other types of agreements that cover related subjects: non-solicitation agreements and non-disclosure agreements. Here is how California law addresses them. 

Non-Solicit Agreements Treated Mostly the Same as Non-Competes

A non-solicitation agreement generally prohibits a party from soliciting a business relationship or transaction from specified persons or enterprises. Employers include non-solicit provisions in employment contracts when they want to bar an employee from soliciting the employer’s clients or customers after the employment ends. Like non-competes, the premise of a non-solicit is that an employee might unfairly capitalize on the employer’s investment in client/customer development to the employer’s detriment. 

For the same reasons that it prohibits non-competes, California law generally prohibits enforcement of non-solicitation agreements against former employees, because those agreements tend to restrain individuals from engaging in their professions or occupations. California courts may, however, enforce a non-solicitation agreement against a former employee if its core purpose is to protect the employer’s trade secrets or confidential business information (as to which, see below). 

Under the exceptions to BPC §16600, California courts generally will enforce non-solicits against partners, LLC members, and parties to the sale of a business or business interests, provided the agreement relates to the conduct of business in a specified geographic area.

Non-Disclosure Agreements (NDAs) and Similar Confidentiality Obligations Enforceable

Employees often have access to sensitive information in the course of their employment. Employers have an understandable interest in protecting against the misappropriation of that information after an employee leaves the fold. For that reason, employment contracts commonly contain confidentiality and/or non-disclosure provisions prohibiting an employee from sharing or using an employer’s trade secrets and other confidential information post-employment.

Unlike non-competes and non-solicits, California courts generally will enforce these non-disclosure agreements, even against former employees, and even if they arguably impact an employee’s future employment prospects, so long as they protect information validly characterized as a trade secret or entitled to confidentiality. However, courts in California will reject NDAs that define the protected information so over-broadly that they effectively act as non-competes or non-solicits that unlawfully restrain ex-employees. 

If you have questions about the enforceability of a non-compete, non-solicit, or non-disclosure agreement in California, a skilled business litigation lawyer at Perkins Asbill can help. Contact us online or call 916-446-2000 to speak with a member of our team.

Understand Reasonable Accommodation and Religious Discrimination in the Workplace

Federal law provides few protections for workers. However, a candidate cannot be excluded from consideration for a job nor can an employee be discriminated against in their job for religious reasons. Title VII of the Civil Rights Act of 1964 protects you as a job application or a current employee to be free of religious discrimination during the hiring process or during your employment. 

Not only does this law promise you that you will not be discriminated against for your religion, it also provides for reasonable accommodation that your employer must take. Because of this, religious discrimination and reasonable accommodation claims often go hand in hand. If you think you may have been discriminated against because of your religion, you need to speak with an experienced Sacramento employment law attorney today who can help you right this wrong.

Religious Discrimination

Unfortunately for many people, religious discrimination in the workplace happens often and goes unreported. The United States Equal Employment Opportunity Commission (EEOC) manages religious discrimination complaints. The EEOC fields over 3000 complaints each year. 

Religious discrimination can take many forms. The most common examples include:

  • Refusing to hire an applicant because of their religion
  • Terminating an employee because of their religion
  • Paying an employee less because of their religion
  • Refusing to promote an employee because of their religion

Religious discrimination may come to light at any point during the hiring process or during your employment with a company. If you have been denied employment or a promotion because of your religion, you may have a claim against the company for religious discrimination. To find out for sure, you need to speak with a skilled employment lawyer in Sacramento today who can help you understand and protect your rights.

Reasonable Accommodation

Religious discrimination is pretty clear cut. Reasonable accommodation, however, is less transparent. Based on an employee’s legitimate religious beliefs, an employer must make reasonable accommodation to protect your right to practice your religion. Many religions require certain practices, dress, or grooming.

Employers often violate employee’s rights and fail to make reasonable accommodation by:

  • Requiring employees to work on religious holidays
  • Not allowing prayer breaks
  • Banning certain head wear
  • Prohibiting facial hair or hairstyles
  • Not allowing schedule changes or time off for religious holidays

When a business fails to take certain steps to reasonably accommodate employees with religious beliefs, the business may violate Title VII. This could give rise to your religious beliefs being discriminated against, leaving you feeling harassed and embarrassed by your employer. 

You do not have to stand for this. You have a protected right to practice your religion and your employer must make reasonable accommodation for you to do so. When they do not, you need to partner with a trusted employment lawyer who can help you right this wrong.

Cause of Action

When you have suffered religious discrimination in the workplace, you may file a discrimination claim against the company. To be successful in your cause of action, you must show:

  • You have a bona fide religious belief that conflicts with an employment requirement
  • You have told your employer about your belief
  • You suffered adverse employment action as a result

Part of your cause of action must show that the employer did not provide reasonable accommodation. This is where things can get murky. When you alert your employer to your religious belief and how it conflicts with a job requirement, you may also suggest how your employer can accommodate you. 

Your employer does not have to provide you with the exact accommodation you have requested. But the accommodation they offer must be reasonable and not provide undue hardship to the employer. 

Not every employer is covered under Title VII. Employers with more than 15 employees, including private companies, are subject to Title VII. If your employer has fewer than 15 employees, you may still have a valid claim if you can show your employer was acting with a parent company or subsidiary that would have put them over the minimum employee requirement. The best way to know for sure is to speak with a knowledgeable employment lawyer as soon as you have suffered religious discrimination in the workplace.

Possible Remedies

With many legal claims, the remedies are clear. In a car accident, you want to have your medical bills covered. But religious discrimination claims may create some confusion. 

Your employment lawyer may attempt to remedy your situation by asking for:

  • Getting your job back, if you lost it
  • Compelling the company to hire you or promote you
  • Back pay
  • Retroactive benefits
  • Monetary damages for your suffering and embarrassment 

As with all legal claims, your case is unique and your remedies will be unique. Working with your employment lawyer, you can determine what you want out of your cause of action against the company who discriminated against you. It’s important to remember that you do not have to go through this alone.

Religious Discrimination Lawyers Fight for You

The lawyer you choose can make a difference in the outcome of your religious discrimination claim. You need a lawyer who has proven experience fighting for religious discrimination victims like you. Companies too frequently get away with this type of behavior. We can help you hold your employer liable for your suffering.

A company can ask you about the sincerity of your religious beliefs when you ask for reasonable accommodation. These questions may seem intrusive but your employer has a right to determine your sincerity. Asking other questions or getting too personal may cross the line. If you have been denied a promotion, terminated, or turned down for employment because of your religious beliefs, you may be entitled to legal remedies through a discrimination claim against the company. 

If you think you may have been discriminated against by your employer, speak with an experienced employment law attorney in Sacramento today. Contact us online or at 916-446-2000. We look forward to speaking with you and helping you resolve your workplace discrimination matter. 

What You Need to Know about Sexual Discrimination and Retaliation Claims

No employee should have to deal with workplace sexual discrimination. In truth, every worker has a right to a safe working environment, free of sexual harassment, discrimination, and retaliation claims. Unfortunately, sexual discrimination is a difficult topic that causes many employee victims not to want to come forward in fear of what can happen to them. Instead, they decide to stay silent and endure the overwhelming stress, anxiety, and worry on their own.

However, we are here to tell you that you do not have to go through this traumatizing ordeal by yourself. As an employee, you have both state and federal rights, and in this blog post, we will discuss these rights. Specifically, going over the different types of sexual discrimination and retaliation claims you need to know about, the sexual discrimination remedies you can pursue, and how an experienced employment law attorney can help you go after the justice you deserve. 

What is Sexual Discrimination

Sexual discrimination involves treating another person, whether an employee or an applicant, unfavorably because of their sex. According to Title VII, discrimination against a person because of their gender identity, including their transgender status or sexual orientation, is against the law. 

This law also forbids sexual discrimination when it comes to any aspect of employment, such as hiring, firing, job assignments, pay, promotions, training, layoffs, fringe benefits, or any other conditions of the employment. 

What Are Retaliation Claims

Retaliation claims occur when an employer treats current employees, former employees, applicants, or individuals closely associated with these people less favorably for:

  • Participating in a discrimination lawsuit
  • Participating in a discrimination investigation
  • Reporting discrimination
  • Opposing discrimination

As an employer, it is illegal to fire an employee because they filed a discrimination charge with the EEOC even if the EEOC finds that the discrimination charge does not have any merit. 

Common Types of Sexual Discriminations at Work

There are numerous forms of sexual discrimination that can occur in the workplace. However, some of the more common types include:

  • Quid Pro Quo: This Latin term translated means “something for something,” or more specifically, an advantage granted in return for something else. When this term is applied to sexual discrimination, it means that an employer conditions terms of employment based on an employee’s willingness to perform sexual favors. These terms of employment can include increased pay, benefits, position, title, or other advancement opportunities. However, before the employee can receive these benefits, they need to agree to submit to unwelcome sexual advances.
  • Same Sex Discriminations: Many people typically think that sexual discrimination involves women employees launching allegations against male managers. However, this is not always the case. In fact, any employee can experience sexual discrimination, regardless of sex, and this discrimination can even happen between individuals of the same sex. Additionally, it is not only managers or supervisors that can sexually discriminate against others. These sexual discrimination claims can be brought up against co-workers or even the company’s clients. 
  • Hostile Work Environment: Generally, hostile work environments are a form of discriminatory harassment. This discrimination can be based on sex, protected characteristics, race, or retaliation for protected activities. When the courts look into whether a work environment is hostile, they will examine the specific circumstances of the case. Meaning they will look into whether the sexual advances on an employee were unwelcome and severe. They will also assess whether the work environment includes unpleasant chatter and teasing, or did individuals make it difficult for the employee to carry out their job.
  • Sexual Orientation Discrimination: This type of discrimination involves an employer discriminating an individual based on their sexual orientation or their perceived sexual orientation, whether lesbian, gay, bisexual, or heterosexual. 
  • Gender-Based Discrimination: Gender discrimination is the unequal treatment of an individual or group based on their gender. This discrimination often involves an individual treating an employee differently or less favorably because of their gender or sex or affiliation with a group associated with a particular gender.

Sexual Discrimination Remedies

When an employee has experienced sexual discrimination, they deserve to seek remedies for the harm they endured. Typically, this relief can come in the form of:

  • Back pay
  • Front Pay
  • Reinstatement
  • Compelled Hiring
  • Compelled Promotion
  • Attorney Fees
  • Compensatory Damages
  • Punitive Damages in some cases

When you work with a skilled employment law attorney, these lawyers can go over these different remedies with you, help you understand which ones you may pursue, and prepare the best case to fight for these remedies.

Which Employees Are Protected From Sexual Discrimination

According to the EEOC, current employees, former employees, and applicants are all protected from employment discrimination based on color, religion, race, sex, sexual orientation, pregnancy, gender identity, disability, national origin, age, and genetic information. These employees, former employees, and applicants are also protected from retaliation or punishment for filing a complaint of discrimination against their employer, opposing discrimination, or participating in a discrimination lawsuit or investigation. 

How Can an Employment Law Attorney Help You With Your Sexual Discrimination Claim?

Many sexual discrimination victims fail to realize that if they face any discrimination or harassment at work, they need to take specific steps to protect their rights. Often these victims make the mistake of first talking to a coworker, their boss, or even the HR department before looking into what actions they need to take, which can end up hindering their claim. That is why discussing your case with an experienced employment law lawyer first can be a significant asset in your case.

These attorneys can not only go over your case in detail and answer any questions you may have. But they can also walk you through the EEOC charge filing process. Helping you prepare the necessary documents and ensuring they are filed accurately and on time. That is why do not wait any longer. If you have endured sexual discrimination at your workplace, contact a skilled employment law attorney today or call our office at 916-446-2000. Let us help you navigate these complex legal proceedings and fight for the remedies you deserve. 

How Will Posting on Social Media Affect Your Employment Law Claim?

Today, everyone uses social media- from employer to employee. In many instances, businesses, professional offices, retail stores, and even restaurants use social media to promote their services and products. Yet, whether it is in a professional or personal setting, many individuals do not even think twice before posting anything on social media platforms. However, this lack of understanding can end up hurting them professionally. 

Generally, during the workday, employers have the right to monitor their employees’ use of the internet (including checking emails and visiting social networking sites) on computers owned by the employer. However, federal laws prohibit an employer from discriminating against a current or prospective employee based on information on the employee’s social media site relating to their color, race, national origin, age, gender, immigration or citizenship status, and disability. Yet, even with these regulations, what you post on social media can still affect your job and your employment law claim. 

Social Media and Social Networking- What Does it Consist of?

Generally, social media is any form of electronic communication through which users create communities online in order to share ideas, messages, information, and other content. These social media sites include social blogs, wikis, microblogging (Twitter), internet forums, and social networks (Facebook and Instagram). On the other hand, social networking is using these social media sites to communicate with other individuals. 

The Employee’s Rights

According to the Equal Employment Opportunity Council’s position, the use of personal information from social media accounts to discriminate against an employee is illegal. In fact, employers may be liable for creating a hostile work environment if they allow other employees to post negative information or negative comments about another employee or if they learn about the negative social media posts and do not take any steps to have it removed. 

However, not every social media post is protected, and an employee needs to consider the below factors to see if their post can affect their employment:

  • Social Media Posts During Working Hours: Typically, an employer has a stronger claim to review social media posts while the employee is supposed to be “on the clock” and working for the employer.
  • Social Media Posts Relating to Workplace Conditions: Workers usually have a right to speak honestly about their workplace issues, such as harassment by coworkers or their employers, unsafe conditions, pay disparity, and supporting the right of other workers. 
  • Social Media Posts and Employment Termination: If you are fired because of a social media post, it is crucial to speak with an experienced employment lawyer who can decipher if you were truly fired for your post. Or was the firing hiding an illegal reason for letting you go? 
  • Social Media Posts and the Employee Conduct Handbook: You also need to review your employee conduct handbook. Many times it will indicate what a company’s policy is regarding social media posts.

It is also essential to understand the differences between a private company employer versus a public entity. Generally, you do not have First Amendment rights in the workplace. Only government employees have a right to free speech protections, and even those are very limited. In comparison, as a private employee, you may be fired for your speech. No matter if it is in the workplace or outside of it. 

The Employer’s Rights

If an employee files a legal claim against their employer for creating a hostile workplace, sexual harassment, discrimination, or the assertion of any of their employee rights. The legal team for the employer is allowed to review all the social media accounts of the employee. As a result, an employee’s posts can be used to question their credibility. 

  • What Can The Employer Monitor? An employer can monitor an employee’s internet usage, software downloads, anything displayed on their computer screen, files stored on their computer, how long their computer has been idle, and any outgoing emails or those sent within the office. A simple rule to follow is that if the employee can do it on their work computer or a device provided for their work, they should expect their employer to monitor it. 
  • Can Social Media Posts Affect Your Job? An employer can fire you for having social media posts that they feel are inappropriate. This means that even if you do not have access to these sites while working or did not post anything during working hours, your employer can still fire you. Especially if they feel that any of your content is offensive to them, their potential clients, or reflects poorly on the company. 

What it boils down to is the more offensive your social media posts are, the higher the chance that your employer will have a right to take some disciplinary action against you for them. 

What You Need to Do If An Employment Law Claim Has Been Filed

Remember, your social media will be reviewed if a lawsuit against your employer has been filed. Consequently, you need to be on high-alert of your social media usage, including your specific posts, emails, pictures, tweets, and videos. These social media postings can be used against you. As a result, make sure you exercise caution by taking the following measures: 

  • Do not accept any friend requests from anyone you do not know.
  • Make sure to limit your privacy settings.
  • Make sure to limit your electronic communications to people that you know and can verify who they are. 
  • Let your attorney know of any information or posts on your social media accounts that can hurt you. However, before you delete anything, make sure you check with your attorney. Many times the court may impose restrictions once a case is filed. 

If you are an employee who is facing disciplinary action or was fired due to your social media posts, you need legal help that you can trust. At the law offices of Perkins Asbill, we can figure out if your employee rights were violated and help you take action if they were. Do not wait any longer. Contact us today or call our office at 916-446-2000. 

Can Private Employers Regulate Employees’ Off-Duty Conduct in California?

More than ever, an employee’s activism and social media posts can prove quite challenging for employers. Their reasons often ranging from an employer not wanting to be lumped with a particular viewpoint or because the employee’s stance goes against the employer’s public image or ethics. In today’s society, employers are increasingly concerned about their employee’s actions. Mainly due to our current “cancel culture,” where it is a common practice to withdraw support for a company that has done something that may be considered objectionable.

Even if the employer did not authorize the employee’s actions, companies can still feel the negative repercussions. And unfortunately, there is no explicit solution to this dilemma. So, what is an employer to do in these situations? In this blog post, we will discuss some of the issues employers face when dealing with off-duty conduct and what rights employers and employees have in California?

Can Employers Lawfully Monitor Off-Duty Conduct?

In California, like many other states, there are specific laws that protect an employee’s right to engage in off-duty conduct that is lawful. These laws also provide monetary relief to those employees whose employment is adversely affected in violation of these regulations. However, even though it seems these laws are meant to protect an employee’s actions, it is crucial to understand that these laws do not protect all types of employee’s off-duty conduct.

If an employee’s off-duty conduction is harmful or potentially hurts an employer’s business interests or involves some crime, it can result in a valid basis for terminating the employment. Even so, this is often decided on a case by case basis, and specific facts need to be considered before making a final decision, including legal interests and business decisions.

Take, for example, a recent viral video that showed a Franklin Templeton employee, Amy Cooper, reporting to local law enforcement that an “African American man” was frightening her. Yet, all the video showed was Christian Cooper, a bird watcher asking Amy Cooper to put her dog on a leash per the rules of Central Park. This video resulted in an uproar on many social media platforms, accusing Amy Cooper of lying to the police because of racial discrimination. And even though Amy Cooper’s action had nothing to do with her job duties or work performance, Franklin Templeton quickly terminated her employment, citing their company’s “zero tolerance for racism.”

Can Employers Lawfully Discipline Decisions Based on Off-Duty Conduct?

One popular misconception that many individuals have is they feel that because the First Amendment protects their free speech, it is illegal for an employer or company to fire an employee based on something they said. Unfortunately, this is not how this Amendment works. As the First Amendment, typically, does not apply to private employers.

However, some laws that do apply to California’s private employers, include the following:

  • California Labor Code section 96(k): This law protects employees who are terminated for “lawful conduct” that occurs during hours away from the employer’s premises and not working. Generally, this law applies to lawful off-duty political pursuits.
  • Labor Code Section 1101 bars an employer from adopting, making, or enforcing any regulation that prevents an employee from taking part in politics or becoming candidates for public office. In addition, it prevents the employer from controlling the political activities of their workers.
  • Labor Code Section 1102 bans an employer from influencing or attempting to coerce their employees through the threat of discharge to refrain from following any particular course of political action or activity.

Taken together, these provisions prevent an employer from directing the political activities of its employees. However, these regulations do not stop employers from limiting political and other non-work-related activities in their workplace. Additionally, employers can also prevent employees from posting content that makes viewers believe that the employee is speaking on behalf of the company. In these situations, an employer can take action against the employee, even if their conduct happens off-duty.

Employee’s Social Media Conduct

According to Article 1, Section 1 of the California Constitution, each citizen has an “inalienable right” to obtain and pursue “privacy.” When combined with Section 980 of the Labor Code, these laws are meant to protect an employee’s privacy on their personal social media platforms. While also prohibiting employers from asking employees for their log-in information and passwords. Yet, even though these laws provide some sort of privacy protection for employees and their use of social media, it does not mean that an employee’s public social media posts are protected. If an employee begins posting content beyond their private followers, they waive their right to privacy. As a result, they can be disciplined for their posts, especially when these posts are not deemed to be related to their workplace issues, which are often protected by the National Labor Relations Act (NLRB). 

What Employers Need to Ask Themselves Before Making Any Decisions About Off-Duty Conduct

If an employer has an issue with their employee’s off-duty conduct, they need to consider California’s applicable laws, the effects on the business, and the litigation exposure they may have to face. Looking into their past conduct and reviewing whether they have consistently applied these company protocols can also help them determine the likelihood of the employee succeeding in their legal actions.

During these “polarizing times” that we are experiencing, it should come as no surprise that disciplining off-duty conduct has become incredibly challenging and complex. Not only does the business have to heavily weigh the legal problems that can result in pursuing these actions against their employee, but they also have to take into account the potential loss of sales and customers if this issue becomes common knowledge. In some cases, companies can even suffer when they decide not to take any action against the employee for their conduct.

For these reasons, if you are considering your employee’s off-duty conduct, you need to contact an experienced employment law office today. These lawyers can provide you with the information you need to be able to carefully explore your options while helping you understand all the issues and problems you may have to face. Do not wait any longer; call our office at 916-446-2000.

 

 

 Can My Employer Enforce a Non-Compete Agreement if I Work in California but the Business is Headquartered in Another State?

Most companies go out of their way to protect their data. Data typically includes trade secrets which is often found in internal communications, customer lists, and other information which they do not wish to have “leaked” to other businesses. However, in some cases, a business attempts to discourage their employees from taking information they learn while an employee and starting a competing business.

Employers often demand an employee sign a non-compete or non-solicitation agreement to ensure they do not have to be concerned about the employee later becoming their competitor or working for a competitor. However, under California laws passed in 1985, these agreements are not enforceable because they contain restrictive covenants — that is they restrict the employees ability once they are no longer working for the firm to secure similar employment with another firm, or start their own business which is of a similar nature.

Out of State Business Doing Business in California

California, like most other states, allows businesses which are incorporated or set up in other states to do business within its borders assuming they follow the regulations published by the Secretary of State. In some cases where this occurs, a business owner will draw up a non-compete agreement and specify the agreement was made in another state. This is known as a choice of law provision, which may mean the restrictions, or covenants are enforceable.

However, this does not always mean your employer has the right to enforce a non-compete agreement, even if it contains a choice of law provision. For example, an employee who works in California, for a company who has headquarters in Arizona may be asked to sign a non-compete agreement which states the “choice of law” is Arizona. This is when California courts will review the rules as they pertain to conflict of law.

How Conflict of Law Applies to California Employees

If you are working in California, in a company which maintains an office in California, you may be unaware the company is actually headquartered in Arizona. To complicate matters further, oftentimes a non-compete clause is inserted into other employment documents and is only pointed out should your employer feel they are threatened by your competing with them after you have left the company.

An employer may opt to have you “sign” your documents in Arizona — in this case, then chances are the document could be enforceable under Arizona laws. However, it is also worth noting in most cases, a choice of law provision which violates public policy of the other state could be determined to not apply in such cases.

Since 2018, when these changes went into effect, the goal was to protect employees from being bound to agreements which violated their right to pursue employment with competitors or to start a competing business after leaving one employer. Keep in mind, these documents are often signed as part of the paperwork you sign when you are initially hired. In rare circumstances, an employee may be told they cannot be hired unless they sign a non-compete agreement. This is unlawful in California because they are not enforceable within the state.

The code which makes these unenforceable is  found in California Business and Professions Code Section 1660specifically states “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

Not Limited to Key Figures or Managers

Many employees believe they have nothing to be concerned about with such clauses in their employment contracts because they are “lower level” employees. However, according to the U.S. Department of the Treasury Office of Economic Policy, across the United States, 20 percent of those who are bound by non-compete agreements, including 14 percent of those earning less than $40,000 per year. Therefore, it is not safe to assume you have no need for concern.

Because employers were routinely attempting to skirt the statutes regarding non-compete agreements, the California Labor Code (Section 925) was modified to specify that any agreement which was entered into between an employer and employee after January 1, 2017 would not be allowed to include non-compete agreements a provision as a condition of employment.

This portion of the Labor Code also went a step further and specified that the employee who lives in and primarily worked in California could not, without the guidance of an attorney, agree to have any future disputes heard in a court outside of California law or agree to such provisions under any state’s laws except California.

There are exceptions to when something may be enforced, even if it is part of an overall unenforceable agreement. For example, if an employee were to leave a company and begin soliciting clients to their business from their prior employer, or if the employee were to begin sharing internal trade secrets with a competitor. In the event your former employer filed a lawsuit, the general provisions may be upheld in court.

When Employers Retaliate Against Former Employees

When your employer attempts to stop you from accepting a job because they claim it is in violation of a non-compete or a non-disclosure agreement, one of two things will occur. You may receive a cease and desist order, or you may be notified a lawsuit has been filed against you by a former employer. In either case, you should immediately contact an attorney to learn about your rights and protect yourself from missing an opportunity to further your career.

If you are starting a new position and being asked to sign a non-compete agreement, you should seek legal help immediately before you sign the agreement. It is important for you to know whether the agreement is enforceable before you sign any documents. Whether you need help negotiating a contract, reviewing an employment contract, or you are in receipt of notification of a pending civil lawsuit, or a cease and desist order, contact Perkins Asbill, A Professional Law Corporation at 916-446-2000. We have more than three decades of labor and employment law experience representing clients in central and northern California.