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Was the person harassed or discriminated against because he/she/they are in a protected class?

Our firm represents employees/tenants/persons who are in a protected class, e.g., who have been harassed, discriminated, or retaliated against, or have experienced other adverse actions due to their disabled status, race, color, ancestry, ethnicity, national origin, religion, gender (pregnancy or sex), sexual orientation, gender identity/expression, reproductive health decision making, marital status, veteran status, age, medical condition, or perceived as any of these classes (ex: perceived disabled perceived gay, perceived muslim, perceived jewish; etc.), or who have been denied medical leave to take care of themselves or a family member, or who have been denied accommodation and/or a good faith interactive process.

If the person needs an accommodation, is there one available, such as additional leave or an open position (not just tasks)? Is the accommodation being requested reasonable-such as, changing a schedule around so the person can have his/her/its Sabbath off, or moving a shelf lower to help with a restriction of no over-head reaching?

Reasonableness is the standard for determining whether an accommodation must be made or is available. This is juxtaposed against various considerations: how many employees an employer has; how large the company is and how big of a request is made (is it a one time item, or something that must occur numerous times; or is it a really expensive or burdensome request, vs something that is a one time, inexpensive purchase). Course one must keep in mind that “reasonable” accommodations are not just limited to what the person/employee/tenant has requested; specifically, an interactive process or discussion is required when the person is a protected class member (listed above), and either requests accommodations, or the Employer/landlord/business knows an accommodation may be needed. Employer/landlord/business may need to hire someone fit to help with the discussion and determine what accommodations could be available.

Accommodation can mean leave to take care of ones self or another as well. If an employer cannot accommodate the employee, the employer can provide leave, even if the employee is already on “workers’ compensation leave”, the employer can put the employee on FMLA/CFRA leave.

Employers with five or more employees can be sued for discrimination/retaliation, and must look for a reasonable accommodation. (Under state law, and under Federal law, 15 or more employees).

Federal law requires: Employers with fifty or more employees (with 75 miles of location) must offer FMLA (Family Medical Leave Act), but only if employee has been there one year, accrued at least 1,250 hours and employee has not taken that leave in the last year.

California law requires: Employers with five or more employees (with 75 miles of location) must offer CFRA (California Family Rights Act), but only if the employee has been there one year, accrued at least 1,250 hours and the employee has not taken that leave in the last year. This leave also can apply for baby bonding as well.

If the employee complained of unlawful activity, was an investigation done?

Investigations should be: Timely, neutral and thorough. An employer is legally required to investigate all complaints of discimination, harassment or retaliation. Employers should advise the employee making the complaint they will not be retaliated against for making the complaint. Best practice is to hire an outside investigator who does not take direction from the company. The company does not have to advise the complaining employee of correctional steps taken to other employees, but they do have to keep the complaining employee safe and informed. All parties involved should be interviewed in the same manner and afforded the same opportunities in the investigation. Employers with one or more employees may be sued for harassment. Employers who do not follow steps for a timely, neutral or through investigation only provide animus that there is actual evidence of discrimination, harassment or retaliation to the underlying complaint from the employee.

Applicable Statute of Limitations (“SOL”) and Government Agencies That Can Help

For discrimination, harassment or retaliation, or denial of medical or family leave (including CFRA):

California:
Civil Rights Department (CRD): For employment claims: You have three (3) years from the last date of discriminatory activity to file.  (https://calcivilrights.ca.gov/ or 1-800-884-1684). Once CRD issues a “right to sue” letter, the complainant has 1 year from the date of issuance to file a civil action in court. For Housing claims, there is no need to exhaust, but you can contact the CRD for help, you can file directly in court and you have two– 2 years to file from the last day of discriminatory activity

Federal:
Equal Employment Opportunity Commission (EEOC). File 300 days from the last date of discriminatory activity (if employee is outside of California, SOL may be only 180 days). (www.eeoc.gov or 1-800-669-4000.) Once the EEOC issues a “right to sue” letter, the complainant has 90 days to file a civil action in court. The EEOC also covers the Age Discrimination in Employment Act (ADEA), precluding discrimination against those over 40. (Same SOL as above.) The EEOC also covers the Americans with Disabilities Act (ADA) for employment matters. (SOL is 300 days.) The Equal Pay Act is enforced by the EEOC. The SOL is 2 years from last discriminatory paycheck, 3 years if willful.

For non-employment ADA claims, such as access cases, file with the U.S. Department of Justice (visit www.ada.gov or call 1-800-514-0301). (SOL for these is state personal injury – 2 years.)

File with the U.S. Department of Labor (DOL) for a violation of the Family Medical Leave Act (FMLA) within 2 years (3 years if willful) from the discriminatory activity (www.dol.gov/whd/fmla  or 1-866-4-USA-DOL).

Fair Housing Act. File with Housing and Urban Development (HUD) (http:// portal.hud.gov/hudportal/HUD?src=/topics/housing_ discrimination or 1-800- 896-7743). SOL is 2 years.

What is an Equal Pay Act Claim?

An equal Pay Act Claim can be brought for just the wages themselves for the difference of the wages you are being paid versus someone with comparable work and skills (without looking at prior salary). You can also bring this as a discrimination suit under separate statutes or via different agencies. Equal Pay Act violation for discrimination can be brought either because of race or gender.

Where do I go for my wage only claim of Equal Pay Act?

If you believe you have an Equal Pay Act violation you can file in California under the California Fair Pay Act with the Labor Commissioner, information above with the same statute as listed above. Equal Pay Act means you are paid differently than another gender was paid for substantially similar work. But if you can bring this claim under the B&P as listed above, you may be able to go back four years. www.dir.ca.gov/dlse/California_Equal_Pay_Act.htm

For retaliation for complaining about fair pay, you can make your claim in California to the Retaliation Complaint Unit of the DLSE, and it will investigate the alleged violations. For more information, visit www.dir.ca.gov/dlse/dlseRetaliation.html . For retaliation, you must initiate within one year after the retaliation.
You can also file federally your Equal Pay Act violation with the the Department of Labor (www.dol.gov).

Where do I go for my Discrimination Equal Pay Act claims?

You can also file your claim for investigation for gender or race discrimination of unequal pay with Equal Employment and Opportunity Commission (“EEOC”) at 1-800-669-4000 or www.eeoc.gov
. But, your Federal wage claims are not stopped by filing with the EEOC though, but they can investigate your unequal pay. You can also file with the State by filing a charge with the California Department of Fair Employment and Housing (“DFEH”) at 1-800-884-1684 or www.dfeh.ca.gov 

What are my Statute of Limitations for Equal Pay Act Claims?

For the Wage only claims whether filing in state or Federal Court, you have 2 years with the agencies or 3 years if its willful, or private counsel may be able to go back 4 years. Each paycheck if unequal is a new violation). www.dir.ca.gov/dlse/California_Equal_Pay_Act.htm; (www.dol.gov)

For discrimination claims, you have 300 days to file with the EEOC and 1 year to file with the DFEH. Then you will obtain a Right to Sue from these agencies allowing you to file in Court. It is not recommended you get those unless you have counsel. www.eeoc.gov; www.dfeh.ca.gov

Did you get your final check?

At termination an employer must provide the employee with all wages, including all vacation pay. Sick pay, unless it is what some call “Paid time off” or “PTO” would not be paid out to the employee. Employers must pay employees they terminate within 1 business day. For employees that quit, the final paycheck must be within 3 business days.

Do you think you were wrongfully terminated?

At or before termination, was the employee participating in lawfully protected activity? For example, filing a complaint, was a whistleblower (fired after making a complaint), recently asked for an for accommodation due to a disability, religious practice or pregnancy? Or had the employee recently participated in investigation? These actions could be the employee was wrongfully terminated.

Applicable Statute of Limitations (“SOL”) and Other Tips Related to this Topic

For terminations related to harassment, discrimination or retaliation, see the section above, but note: you must look for work, otherwise no matter whether you win on liability, you could prevail with no monies at all since you have done nothing to lessen your harm while trying to seek a legal remedy. This obligation is called “mitigation” and is a requirement for all employees claiming he/she/it/they’ve lost their job due to a harassment/discrimination or retaliatory reasons.

Wrongful termination in violation of public policy claims have a 2 year SOL and must be brought in Court.
If a termination in California is not connected to the protected class a person is in, or due to a refusal to do activity that is illegal, or other statutory claim, the termination may not necessarily be “wrongful”. California is an “At-will” state, which means an employee can leave at any time and an employer can let them go at any time. No reason must be given to the employee, unless the Collective Bargaining agreement (union contract), employment contract or government provision requires. There is no requirement an employee receive a severance, unless their contract, so requires it.

Applicable Statute of Limitations and Government Agencies That Can Help Whistleblowers who are subject to the following statutory deadlines

False Claims Act / Qui Tam claims (involving the misuse of public funds). File within 6 years of the violation or 3 years after the govt. knows – no later than 10 years after the violation.
Blowing the whistle on a publicly-held corporation for S.E.C. or other corporate/financial accountability violations. File complaint within 180 days from the violation with DOL’s Occupational Safety & Health Administration (“OSHA”) (www.whistleblowers.gov  or DOL at 415-625-2547 or OSHA at 1-800-321-0SHA (6742)).
Workers who have suffered adverse personnel actions, file with OSHA within 30 days of adverse action (www.osha.gov/opa/worker/complain.html ).
CA law: 3 years to file under Labor Code § 1102.5 for retaliation for whistleblowing. For a government employee, 1 year under Government Code § 8547.

Overtime – When is it owed to me?

In California the following times are when overtime and double times are paid:
Traditional Overtime of time and a half pay is owed at the following times: (a) over 8 hours in one day; (b) over 40 hours in one week; and (c) for hours worked up to 8 on the 7th consecutive day of work. And if an employee works into its 12th hour, then they are owed double their normal hourly rate.
This is unless your employer has one of the following situations: (1) a union, who’s contract may trump the following times; (2) a valid election done by the employees and registered with the state; (3) You work in the fields/agriculture, but the overtime rates are slowly changing each year and will be at regular rate, depending on your employer’s size by either 2022, or 2025. If you work for an employer of more than 26 employees, your overtime as of 2022 was after 8 hours in da day and after 40 hours in a week; if you work for an employer of 25 employees or less: your over time is: 2023: 9/50; 2024: 8.5/45; 2025: 8/40 – www.dir.ca.gov/dlse/Overtime-for-Agricultural-Workers.html ; (4) You work in an occupation where you are a personal attendant- overtime begins at 9 hours; (5) You are a truck driver with a truck over a certain weight amount and length/axles.

What breaks am I entitled to and when should my employer give them to me?

For every 4 hours, or major fraction thereof, an employee works, they are supposed to have a duty free, uninterrupted 10 minute rest break. For every 5 hours of working an employee is entitled to a 30 minute, uninterrupted meal break. If an employee works beyond these hours, such as 8 hour day- that employee is entitled to: 2 ten minute rest breaks and 1 thirty minute meal break; same would be true if an employee worked 7 1/2 hours as it is a major fraction thereof, for example. If the employee works into their 10th hour or more, the employee would be entitled to another 30 minute uninterrupted meal break. Some employers can enter into “On duty” meal breaks, meaning the employee does a position where leaving the work station or persons the employee is working with are unsafe and thus, must work while eating. In certain careers that is allowed. There can also be a lawful “waiver” of the first meal period, but never the second.

My employer says I am an independent contractor, is that true?

The employer may be wrong about whether you are an independent contractor. There are some tests as to whether you are an employee or not: (AB 5) a law signed a few years ago, making the ABC test set law, that was first seen in a California Supreme Court case. However, AB 5, now Labor Code Sections 2775-2787 has many carve outs for various professions as to whether you can be an employee or not. Before you start with either the ABC test or the legacy test known as the Borello test that all look at various aspects of control your employer has over you and your duties while at work, it is best to look and see if your profession is carved out. Once you determine that your profession is not on the list, you start with the assumption that YOU ARE an employee, whether you are using the ABC test, or the Borrello test. Some professions require you to use these tests anyway, to make the determination and tell you WHICH test to use. California Division of Labor Standards Enforcement, otherwise known as the Labor Commissioner, has a FAQ that goes through all of these tests, professions and other important details.
Read more: https://www.dir.ca.gov/dlse/faq_independentcontractor.htm

https://www.dir.ca.gov/dlse/Lawsuits-Uber-Lyft.html

How do I know if I have been paid for all my hours?

Your “paystub” which lawyers call “Wage Statements” should show all of the following: Valid name and address for your employer; Your pay rate -all of them (so your overtime and double time rates too if you work them); how many hours you worked in the pay period at the various rates; the pay period; your last four digits of your social, or an employee identification number; all your bonuses and tips, and benefits accruing, including sick, vacation or “PTO” – Paid Time Off you’ve accrued and/or used in that pay period and all the taxes taken out. The purpose behind all of these requirements is so an employee can figure out if the employer paid them for all their pay and so an employee would lawfully know what the entity or person’s name is who is responsible for any violations.

Applicable Statute of Limitations (“SOL”) and Government Agencies That Can Help For wage and other compensation-related violations

Aggrieved employee Can file with either/both:
California Labor Commissioner (www.dir.ca.gov/dlse or 1-866-924-9757). 3 years to file a wage claim, 4 years to file a breach of a written contract claim, 2 years to file a breach of an oral contract claim, 1 year to seek penalties for Labor Code violations under the Private Attorneys General Act (“PAGA”), but 6 months to file a retaliation or termination claim with the labor Commissioner. California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200) extends some deadlines to 4 years for filing a civil action in court. The California Equal Pay Act has same 6 month SOL for filing with the Labor Commissioner, or 2 years to file in Court (3 years if willful).
Federal U.S. Department of Labor (“DOL”) (www.dol.gov/whd/workers.htm or 1-866-4-USA-DOL). 2 years to file for minimum wage violations or unpaid overtime. If the violation is willful, the deadline to file is 3 years.

Personal Injury Claims

Slip and falls, auto or motorcycle accidents: have a two year statute of limitations and must be brought in Court.
Defamation claims: libel or slander, or invasion of privacy claims have a one year statute of limitations and must be brought in Court.

My union is not helping me with my situation, what do I do?

The firm does not handle claims against unions. For complaints about unions or union representation (such as their failure to file a grievance to enforce union contract), make a complaint to the National Labor Relations Board (www.nlrb.gov or 1-866-667-6572). SOL is 6 months.

Do I have to follow my employer’s internal grievance procedures?

Employees may also have to comply with deadlines imposed by an employer’s internal grievance procedures or union. Especially public employees (can be limited to six months). Consult an employment attorney as early as possible as ignorance of the law is no excuse for untimely complaints.

My Employer has said things about me that are untrue or that are private, what do I do?

That would possible be a Defamation or Invasion of privacy claim. Employees have one year from the violation to bring the claim. Each time the false information, or private information is repeated, it could be a new violation.