At Will Employment
In California, most employment relationships are “at will.” This means that the employer can terminate an employee at any time for any reason (good, bad, or for no reason at all). However, an employer cannot legally terminate an employee if discrimination is a motivating factor in the decision (i.e., firing someone based on their gender, race, disability, sexual orientation, etc.). If the employee has a written employment contract or is a member of a union, they may not be considered “at will” employees and thus have greater employment protections.

Disability Discrimination
In California, it is against the law to discriminate against a “qualified” individual because of the employee’s disability. Employees with conditions (or a history of conditions) that limit a major life function (e.g., seeing, hearing, walking, breathing, etc.) are considered disabled. The disability can be physical or mental. A “qualified” individual is one who can perform the essential functions of the job with or without a reasonable accommodation. The employee must meet the employer’s standards for the position in terms of education, experience, etc.

Discrimination (Generally)
Under both federal and state law, it illegal for an employer to take an adverse action against an employee or candidate for employment on the basis of race, national origin, sex, pregnancy, religion, disability, or age. Under California law, it is also illegal for an employer to discriminate on the basis of sexual orientation, sexual identity, and marital status.

Family Medical Leave Act (FMLA)
FMLA provides an eligible employee with up to 12 weeks per year of unpaid leave to take care of their own serious health condition, including pregnancy and childbirth; care for a family member with a serious health condition; or tend to a new child in the family (including adopted children). A “serious health condition” is an illness, injury, impairment, or other physical/mental condition that requires inpatient care in a medical facility or continuing treatment by a health care provider (e.g., a medical doctor, clinical psychologist, dentist, a clinical social worker).

An employee who takes FMLA is entitled to return to his or her job. Employers are required to pay the employee’s health benefits during FMLA leave.

Eligible FMLA Employee

To be considered an eligible employee, the following requirements must be met:

1. The employee must have been employed for at least 12 months by the employer (consecutive or nonconsecutive);

2. The employee must have worked at least 1,250 hours in the previous 12 months (consecutive); and

3. The employer must have at least 50 employees within 75 miles of the worksite.

Even if there are not 50 employees within a 75-mile radius, the company may have a general policy that mirrors the FMLA. However, if it is a voluntary program sponsored by the employer the requirements contained in the law will not be enforceable.

Terms of FMLA Leave

An eligible employee is entitled to 12 weeks of unpaid leave. Employers can require the employee to use any unpaid vacation leave or personal leave (such as sick days) before taking FMLA to care for a sick spouse.

During any FMLA leave, an employer must maintain the employee’s coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. This means that if an employee’s health care covers herself and her family members before the leave, it must continue to cover both her and her family during the leave. An employee must continue to pay her share, if any, of the health care premium if she was required to contribute to the premium before the leave began.

If an employee fails to return and work for at least 30 calendar days after her completing the full 12 weeks of leave, the employer may recover the cost of the health care premiums if paid during her leave. However, if the employee does not return because of her family member’s continued serious health condition, or other reasons beyond her control, the employer cannot recover the health care premium.

Intermittent FMLA Leave

Eligible employees are entitled to up to 12 weeks of leave in a 12-month period. Thus, the employee does not have to take all 12 weeks at once.

Restoration to the Same or Equivalent Position Under the FMLA

Eligible employees are entitled to the same or equivalent position after their leave. The employee is entitled to the same pay, benefits, shifts, etc. The employee also retains his or her seniority prior to the leave. However, employees do not accrue seniority or other benefits during the leave period.

Certain employees are exempt from overtime. Courts generally interpret the exemptions from overtime narrowly which favors the employee. The employer has the burden of proof in establishing that an employee is properly categorized as exempt and not entitled to be paid overtime. The employee’s title, job description, or the fact that he or she is paid on a salary basis will not automatically determine if the employee is exempt from overtime. It is necessary to review the actual job duties performed by the employee.

For most industries in California, overtime pay is calculated as follows:

- For all hours over 8 worked in a workday: 1.5 x regular hourly rate of pay

- For all hours over 40 worked in a workweek: 1.5 x regular hourly rate of pay

- For the first 8 hours on the 7th consecutive day worked in a workweek: 1.5 x regular hourly rate of pay

- After 8 hours on the 7th consecutive day worked in a workweek: 2 x regular hourly rate of pay

- For all hours over 12 worked in a workday: 2 x regular hourly rate of pay

If an employee is paid on a salary basis and also falls into one of the following categories, he or she may be exempt from the payment of overtime:

Administrative Employees: employees who spend more than 50% of their time performing non manual or production based work and regularly exercise discretion and independent judgment on matters impacting management polices and general operations.

Commission Based Employees: An employee whose base pay is primarily based on sales commissions and who earnings exceed 1.5 times the minimum wage.

Computer Software Employees: A highly skilled employee who earn more than $43.58 per hour and spend the majority of their time on work that is creative/intellectual and requires the exercise of discretion and independent judgment.

Executive Employees: An employee such as a manager with significant discretion and independent judgment on matters of importance that regularly supervises – and can hire/discipline – 2 or more employees.

Live-In Employees in Private Households: An employee who lives in a private household is entitled to 12 hours of free time during each workday and their hours of work cannot span more than 12 hours in a day unless the employee is given at least 3 hours of free time during that 12 hours. If the employee works more than 12 hours or works during his or her free time, the employee is entitled to time and a half for the time worked.

Personal Attendants: An employee who works in a private home to supervise, feed, or dress a child or person who needs supervision. If the employee spends more than 20% of his or her time performing general housework that is unrelated to the supervision duties, the employee may be eligible for overtime.

Professional Employees: An employee such as a doctor, lawyer, architect, engineer artist, or any other employee who performs a job that is recognized as a “learned” (i.e., requiring an advanced academic degree) or “artistic” (i.e., work requiring a substantial amount of originality, creativity, or imagination).

Reasonable Accommodation
In California, an employer is required to provide a “reasonable accommodation” to a qualified employee with a disability. Reasonable accommodations are different based on the type of disability but can include: job restructuring such as part-time or modified work schedules; reassignment to a vacant position; modification to equipment, furniture, or training materials; or providing qualified readers or interpreters. An employee has a continuing obligation to make sure that the reasonable accommodation works by communicating with the employee and, when appropriate, with the employee’s doctor

An employer is not obligated to provide a reasonable accommodation if it can establish that granting the accommodation would create an “undue hardship.”

Sexual Harassment
Sexual harassment is a form of sex discrimination. There are two types of sexual harassment: (1) quid pro quo and (2) hostile environment.

Quid Pro Quo harassment occurs when an employee is subjected to an adverse employment action (such as a demotion, reprimand, denial of a promotion, etc.) for refusing to accept a supervisor’s demands for sexual favors or to tolerate a sexually charged work environment, or when he or she feels pressured to endure or submit to sex based conduct (such as sexual favors or harassment) in order to avoid an adverse employment action or gain an employment benefit.

A hostile environment occurs when the employee is unlawfully subjected to unwelcome offensive or intimidating conduct based on sex that is so severe and pervasive that it alters the conditions of employee’s employment and creates an abusive working environment. Usually, it will take more than a few offensive comments to create a “hostile environment.”

General Disclaimer
The legal information contained in this site is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. Nor is it intended to provide you with legal advice or create an attorney-client relationship. An attorney-client relationship with the Law Office of Greg Mayeda will only be created upon the signature of a written agreement by the attorney and the client. The accuracy of the legal information contained in this site and in any of the sites to which this site links are not guaranteed. It is recommended that you consult a licensed attorney who is knowledgeable about the area of law in question before you take action to address a legal matter.