Areas of Practice

Under California law you, as an employee, are protected from adverse employment actions (firing, demotions, not receiving equal pay, etc.) that are taken against you because you belong to a certain protected class. This includes if you are treated differently from other groups of employees when no legitimate business reason appears to exist.

Protected Classes include:

• Race (including traits historically associated with race, such as hair texture and protective hairstyles)

• Color

• Religion (including religious dress and grooming practices)

• Sex/gender (including pregnancy, childbirth, breastfeeding, and related medical conditions)

• Reproductive health decision-making

• Gender identity, gender expression

• Sexual orientation

• Marital status

• Medical condition (including genetic characteristics, cancer, or a record or history of cancer)

• Military or veteran status

• National origin (including language use and possession of a driver's license issued to persons unable to prove their presence in the United States is authorized under federal law)

• Ancestry

• Disability (mental and physical, including HIV/AIDS, cancer, and genetic characteristics)

• Genetic information

• Request for family care leave

• Request for leave for an employee's own serious health condition

• Request for Pregnancy Disability Leave

• Retaliation for reporting patient abuse in tax-supported institutions

• Age (over 40)

• Criminal background (Fair Chance Act)

California law protects you, as an employee, from any unwelcome conduct based on a protected characteristic that creates a hostile, intimidating, or offensive work environment.

This includes, but is not limited to: 

• Offensive jokes, slurs, or derogatory remarks 

• Unwelcome physical contact 

• Creating a hostile work environment 

• Sexual harassment, which is defined as unwelcome sexual advances, or other visual, verbal, or physical conduct of a sexual nature

California protects you, as an employee, from any adverse employment action (firing, demotion, refusal to promote, etc.) in response to you:

• Opposing workplace harassment, employment discrimination or an employer’s failure to grant required pregnancy/family leave;

• Files a complaint about harassment or discrimination;

• Testifies or assists in any proceeding under the FEHA; or

• Requests workplace accommodations for disabilities (physical, mental, or emotional) or accommodations for their religious beliefs or observances.

California protects you, as an employee, when you stand up to illegal conduct in your workplace. When you stand up to, and report, illegal conduct you are known as a “whistleblower” and US Federal laws and California whistleblower laws protect public and private employees alike. As a California employee two laws protect you, California Labor Code section 1102.5 (“Whistleblower Protection Act”) and the Sarbanes-Oxley Act of 2002. 

These laws prohibit employers from retaliating against employees who disclose information that the employee believes involves a violation of state or federal law or refuse to participate in an activity that would violate a state, federal, or local law.

California protects you, as an employee, when you take FMLA (Family Medical Leave Act) or CFRA ("California Family Rights Act) leave. Employers are prohibited from interfering with your right to take FMLA/CFRA leave, or discriminating or retaliating against you for taking such leave.

California law extends these protections to persons who take FMLA/CFRA leave in order to care for a family member suffering from a serious health condition. As such, employers cannot consider your FMLA/CFRA leave as a negative factor in employment decisions, such as hiring, promotions, disciplinary actions, or termination; nor can such leave be counted under “no fault” attendance policies.

So if you come back from FMLA/CFRA leave and now your employer is attacking your performance, your attendance, or unjustifiably places you on a Performance Improvement Plan (PIP), then you might be experiencing retaliation for taking a legally-protected Family and Medical Leave Act/California Family Rights Act (FMLA/CFRA) leave.

California has a state minimum wage law that sets the minimum hourly wage that employers must pay to most employees which is currently set to be above the Federal minimum wage.

Certain counties and cities in California have an even higher minimum wage than the rest of California.

Failure to adhere to the minimum wage laws of your city, county, or California as a whole can occur in the following ways:

• Paying Less Than the Minimum Wage: The most straightforward violation is when an employer pays employees less than the state-mandated minimum wage.

• Not Increasing Wages with Minimum Wage Hikes: California gradually raises the minimum wage, and an employer may fail to adjust their employees’ wages accordingly with each scheduled increase.

• Not Paying for off-the-clock work: Employers who do not pay for all hours actually worked by employees, even if that time was not authorized, is still a violation of the minimum wage laws.

• Illegal Deductions: Employers might make unlawful deductions from employees’ wages, effectively bringing their earnings below the minimum wage.

• Unpaid Training: If an employer requires employees to undergo training but does not compensate them at least the minimum wage during the training period, it can be a violation.

• Tip Credit Violations: Some employers in specific industries, like restaurants, might improperly apply tip credits, resulting in employees receiving less than the minimum wage after accounting for tips.

• Payroll Errors: Mistakes in payroll calculations or delays in issuing paychecks that result in employees not receiving at least the minimum wage for the hours worked.

• Failure to Include All Compensable Time: Not considering all hours worked, such as travel time, on-call time, or waiting time, can lead to minimum wage violations.

• Piece-rate Pay Violations: Certain industries pay employees based on the number of tasks completed (e.g., per piece, per job). If the total compensation divided by hours worked falls below the minimum wage, it can lead to violations.

Under California law if you are a non-exempt employee who works more than eight hours in any workday, or more than 40 hours in any workweek, you are entitled to one and one-half times your regular rate of pay for all hours worked over eight hours in any workday and/or over 40 hours in the workweek.

Some common ways employers may fail to pay overtime include:

• Unauthorized Overtime: Some employers might discourage or prohibit employees from working overtime but still expect them to complete their tasks, leading to unpaid overtime.

• Compensating Overtime with PTO: In some cases, employers may try to avoid paying overtime by offering paid time off instead. However, private sector employers generally cannot offer this trade off except under very specific circumstances.

• Incorrect Overtime Rate: Overtime pay must be at least 1.5 times the employee’s regular rate of pay. If an employer miscalculates the overtime rate or pays a flat rate for overtime hours, it can lead to violations.

• Shifting Hours Between Pay Periods: Employers may try to manipulate work hours across pay periods to avoid paying overtime.

• Working Through Lunch or Breaks: Failing to provide required meal and rest breaks or requiring employees to work during those breaks without compensating them for that time can result in overtime violations.

• Misclassified as “exempt": Employers may incorrectly believe that if they pay a salary then the employee is “exempt” and is not required to receive overtime pay, however, in California to be classified as “exempt” the employee must satisfy specific elements of an exemption. Most employees who work in most industries are nonexempt, meaning they need to be paid overtime to comply with California law.

• Improper Salary Basis: Even if an employee is correctly classified as exempt, they must meet certain salary requirements to be exempt from overtime. If the salary is below the minimum threshold, the employee should be eligible for overtime pay.

• “Off-the-Clock” Work: Requiring employees to perform work-related tasks before or after their scheduled shifts without compensation or not counting certain work-related activities as billable hours.

Even if the employee is off the clock, they must be paid for work actually performed, whether or not they are clocked-in.

California law goes beyond federal law stating that employers may be liable even if they do not explicitly tell employees to perform off-the-clock work. If your employer knew or should have known and did nothing to stop unpaid work, they may be required to pay you for that time.

Examples of this are taking phone calls while off-the-clock, completing paperwork off-the-clock, donning and doffing safety equipment while off-the-clock, and some types of transportation on behalf of your employer.

Employees in California are entitled to a paid rest break of at least 10 minutes for every 4 hours worked (or a major fraction thereof).

Failing to provide a legally adequate rest break leads to a penalty equaling one hour of your regular rate of pay.

Common ways employers fail to provide adequate rest breaks are:

• Inadequate Break Times: Scheduling short breaks that do not meet the required duration may constitute a violation.

• Working During Breaks: If employees are required to perform any work duties during their meal breaks or remain on-call, they must be compensated for that time, and it does not count as a proper break.

• Non-Compliant Company Policies: Company policies that discourage or inhibit employees from taking breaks can lead to violations.

Under California law, employees who work for more than 5 hours in a workday are entitled to an unpaid meal break of at least 30 minutes.

If an employer does not provide the required meal break or pressures employees to work through their meal breaks, they are in violation of the law.

Only in specific situations where the nature of the work prevents employees from taking breaks, employers may provide compensation in lieu of breaks. However, it must be clearly communicated, and employees must agree to it voluntarily.

Common ways that employers fail to provide legally adequate meal breaks are:

• Inadequate Break Times: Scheduling short breaks that do not meet the required duration may constitute a violation.

• Waiver Violations: While some employees can voluntarily waive their meal breaks under certain conditions, employers cannot coerce or force employees to do so.

• Automatic Deductions: Employers cannot automatically deduct time for meal breaks without ensuring that the employees genuinely took uninterrupted breaks.

• Working During Breaks: If employees are required to perform any work duties during their meal breaks or remain on-call, they must be compensated for that time, and it does not count as a proper break.

• Non-Compliant Company Policies: Company policies that discourage or inhibit employees from taking breaks can lead to violations.

If you, as an employee, do not receive full payment of your wages due on the payday designated by the employer in accordance with Labor Code section 204, the payment is late and you may be entitled to civil penalties.

When your employment ends, your employer is required to pay you all of your final wages (including those wages they may not have paid you for such as off-the-clock work) within the same day if you are fired, or within 72 hours if you quit. If they fail to pay you timely, a penalty of a full 8-hour day of work is assessed for each day they are late, up to a total of 30 days.

All employees who work at least 30 days for the same employer within a year in California, including part-time, per diem, in-home supportive services (IHSS) providers, and temporary employees, are entitled to paid sick leave with some narrow exceptions.

As of January 1, 2024, the law requires employers to provide and allow employees to use at least 40 hours or five days of paid sick leave per year. Before January 1, 2024, an employer could limit an employee’s use to 24 hours or three days during a year.

Some cities and counties in California go even further and provide more paid sick leave to employees. If you work in one of these areas, your employer must provide the paid sick leave required by the local ordinance if it is higher than the requirements of state law.

Failure to do so may subject an employer to fines and penalties under the California Labor Code.

When your employment ends, your employer is required to pay you all of your final wages (including those wages they may not have paid you for such as off-the-clock work) within the same day if you are fired, or within 72 hours if you quit. If they fail to pay you timely, a penalty of a full 8-hour day of work is assessed for each day they are late, up to a total of 30 days.

Your employer is also generally required to pay you all of your unused vested (earned) vacation time. Meaning if you accrue your vacation time throughout your employment (for example, every 10 hours of work completed earns 1 hour of vacation time) then that vacation time is vested and you are legally required to be paid it at your final rate of pay when your vacation ends if you did not use it.

An employer’s failure to pay all of your vested vacation time is liable for final pay violations even if they paid all other wages owed upon termination of your employment.

If your employer fails to provide a wage statement or fails to provide accurate and complete wage statement information on your wage statement, then you may be entitled damages.

You, as an employee, must be able to promptly and easily determine the necessary information from the statement alone.

This means that a reasonable person would be able to readily ascertain the information without referring to other documents or information. This information includes:

• Amount of gross wages or net wages

• Which deductions the employer made from gross wages to determine net wages

• Name of the employer

• Address of the employer

• Name and address of the legal entity that secured the services of the employer if the employer is a farm labor contractor

• Name of the employee

• Last 4 digits of the employee’s social security number or employee identification number

Failure to accurately and completely provide this information may result in civil penalties amounting to $50 for the initial pay period and $100 per employee for each violation in a subsequent pay period. The maximum award available to an employee is $4,000.

In addition to the pay stub violation penalties, an employee is also eligible to recover

• the court costs of bringing the lawsuit and

• reasonable attorney’s fees.

An employee can also sue their employer forinjunctive relief. This means that the employee can force the employer to follow California pay stub requirements, in addition to seeking damages.

Kluft Law, P.C. can help you when your employer offers you a severance agreement at the end of your employment.

In California employers are not required to provide a severance agreement but may offer you one, for several reasons including preventing you from suing them in the future.

The legal document known as a severance agreement or severance package outlines the terms and conditions of your departure and any associated benefits that may be presented. In order to make informed choices and safeguard your rights, it’s crucial to comprehend the complexities of these agreements.

In October of 2021, SB 331 put into effect several key provisions and restrictions regarding severance, including a minimum of five days to review the document. Further, SB 331 specifies the right of workers or former employees to consult with an attorney, and the employer must make the employee or former employee aware of this right.

In addition, any employer is not permitted and does not have the authority to include anything in a severance agreement that prevents an employee from discussing or disclosing fact-based information regarding cases or claims of retaliation, harassment, bias, and retaliation. These protections are outlined under the FEHA (Fair Employment Housing Act) and apply to private and public employers and organizations and claims related to race, gender, sex, creed, and other protected characteristics.

Any confidentiality clauses or provisions tied to protected characteristics under state and federal law are prohibited as outlined under the expansive SB 331.

Before you sign a severance agreement, speak with the attorneys at Kluft Law, P.C.

Kluft Law, P.C. can help you draft, review or negotiate your employment contract for a reasonable fee.

When offered a position, to ensure the terms and conditions of your employment are clear and fair, you should ask for an employment contract before you have accepted a position. This will provide you with an opportunity to negotiate your contract before the start of your employment when your bargaining power decreases.

Without an attorney, contracts can become tricky and complicated to understand, which can leave you in a situation you don’t want to be in. So leave it to us to give you the best chance to have a contract you feel confident and happy with.

Employers generally can’t withhold or deduct wages that an employee has earned as legitimate compensation for their work, meaning they’re responsible for paying out all of your earned wages, including your non-discretionary bonus once earned.

Disputes over the nature of an unpaid bonus can arise when there’s ambiguity around certain key terms of the agreement or if there is a dispute whether the bonus is discretionary or non-discretionary (earned).

For example disputes we can help you with, include but are not limited to when:

• The bonus was orally promised

• The bonus was implied rather than explicitly expressed

• The bonus amount wasn’t clearly set, but was to be calculated as a variable based on subjective factors related to the performance of an individual employee/team/etc.

• When the amount of a promised payment for a bonus agreement is disputed

• When an employer denies that a past regularly given non-discretionary bonus should apply after you earned it but before you were paid it.

• When an oral agreement was made In the absence of a written agreement.

Give us a call at (626) 432-5422 if you have an issue with pay or bonusses.