Employment Law FAQ

1. What is an at-will employee?

In California, an at-will employee is one whose employment has no specified term and who may be terminated at the will of either party, with or without cause and with or without notice. An at-will employment relationship is presumed if there is no oral or written agreement specifying the length of employment or the grounds for termination.

2. How do I know if I am entitled to overtime pay?

Under California law, all nonexempt employees who work in excess of eight hours, up to and including 12 hours, in any given workday, or for the first eight hours worked on the seventh consecutive day of work, the employee shall be paid one and one-half times the employee's regular rate of pay. For all hours worked in excess of 12 hours on any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek, the employee shall be paid double the employee's regular rate of pay.

However, certain employees are exempt from receiving overtime compensation, including but not limited to, outside salespersons and those who fall under the administrative, executive or professional exemption.

If you believe that you have been misclassified as an exempt employee and should be receiving overtime compensation, please feel free to contact us.

3. I frequently work through my meal periods and have not received any break periods. What are my rights?

In California, employers must provide employees meal periods of not less than 30 minutes for a work period of more than 5 hours per day and permit non-exempt employees to take a 10 minute rest period for every four hours worked in a day.

If an employer fails to provide meal and rest periods to any non-exempt employee, the Labor Code states that the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided.

If you have not received your meal and/or break periods, please feel free to contact us.

4. I was fired from my job. My employer did not pay me my final wages. Is this lawful?

No, under California law, an employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination.

5. My supervisor and I do not get along. He yells at me and uses profanities when speaking with me. Do I have a case for harassment?

You cannot sue a supervisor or employer for harassment simply because there is a personality conflict or because your supervisor uses profanity. His conduct must target you because you fall into a protected category.

The California Fair Employment and Housing Act ("FEHA") expressly prohibits harassment of employees, applicants, or persons providing services pursuant to a contract only if you fall into one of the following categories:

Race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex (harassment based on sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions), sexual orientation, or age over 40 years.

If you feel you are being harassed because you fall into one of these categories, please feel free to contact us.

6. I work for a Company and am classified as an independent contractor even though I am required to: (1) report for work from Monday through Friday 9:00 a.m. to 5:00 p.m. ; (2) work at the Company's office; (3) use the Company's tools, equipment and materials for completion of my work; (4) follow the Company's procedures in order to complete my work; (5) submit reports regarding my work; (6) meet weekly with my supervisor regarding my work; and (7) submit receipts to be reimbursed for my expenses. Am I properly classified as an independent contractor?

The actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling. The most significant factor to be considered is whether the person to whom services are rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed.

If you believe you have been misclassified, please feel free to contact us.

7. My company only has 40 employees. Am I required to provide sexual harassment prevention training to my employees?

After January 1, 2006, it became mandatory that employers with 50 or more employees provide at least two hours of sexual harassment training to its supervisory employees. Such training must be provided once every two years. The training and education must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

Although you only have 40 employees, sexual harassment training is demonstrative of the preventative measures taken by your company to teach its supervisory employees regarding how to effectively deal with sexual harassment in the workplace and complaints regarding same. Doing so, may help limit your company's liability should it ever be sued for sexual harassment.

If you would like to provide training for your employees, please feel free to contact us.

8. As a San Francisco employer, am I required to provide paid sick leave for my employees?

Yes, as of June 5, 2007, all employers in San Francisco must provide paid sick leave to all employees, including part-time and temporary employees. For every 30 hours worked, an employee accrues one hour of paid sick leave. Depending on the size of the employer, there is a cap of 40 hours or 72 hours of accrued paid sick leave.

If you have any questions regarding accrued paid sick leave, please feel free to contact us.

9. What is San Francisco's Minimum Wage?

Effective January 1, 2007 the minimum wage rate in San Francisco is $9.14 per hour. (California is $8.00/hour) For each year thereafter, the minimum wage increases by an amount corresponding to the prior year's Consumer Price Index for urban wage earners and clerical workers for San Francisco-Oakland-San Jose, CA metropolitan statistical area. Note, that an employee cannot be paid less than minimum wage.

If you have any questions regarding SF's minimum wage, please feel free to contact us.

10. I am a gay male, who recently came to terms with my sexuality. However, I am not comfortable disclosing that fact to others. In a private conversation with my supervisor, she asked if I was gay and I admitted that I was. At a company dinner party my supervisor told everyone in attendance that I was gay. I had been at my job about three weeks when this happened. My co-workers and supervisor laughed and made jokes about my being gay. Do I have a claim?

There are certain areas of a person's life, such as medical history and employment records, that are considered within a protected zone of privacy. A person's sexual orientation generally falls within that zone of privacy. A claim for violation of privacy may exist if the individual considers his homosexuality confidential information. As long as the invasion was serious and the employee suffered injury or was otherwise harmed by the conduct, a claim for violation of privacy may exist.

11. I have been unemployed for about 3 months. I recently learned from one of my prospective employers that my prior supervisor told them that I was terminated from my previous employment for stealing. I was denied the job because of that statement. The statement is untrue. In fact, I had an impeccable work record despite personality conflicts with my supervisor. Is his conduct actionable?

An employer who by any misrepresentation prevents or attempts to prevent a former employee from obtaining future employment may be liable for defamation among other claims. While statements made to prospective employers may be privileged communication, the communication is not protected when it is motivated by anger, hostility, hatred or ill will toward the employee.

If you have any questions regarding privacy rights or defamation, please feel free to contact us.

12. I was recently diagnosed with a rare form of cancer. My doctors told me that treatment will require several visits to specialists over a period of three months, but that I could continue working as usual. I contacted my supervisor at work and told him that I had cancer. Within a week of this conversation, I was fired from my job for alleged work performance issues. My evaluations up until then have been above average. What are my rights?

Disabled employees who are otherwise qualified and able to perform the essential duties of their job must be provided with a reasonable accommodation so that they may continue working as long as the accommodation will not adversely affect the operations of the employer's business. Additionally, an employer who is contacted about or is otherwise aware of an employee's disability has an affirmative duty to engage with the employee in an interactive process to determine how best to accommodate the employee's disability at work. An employer's decision to terminate a disabled employee in preference to an individual without a disability may also give rise to a claim of discrimination.

If you have any questions regarding disability discrimination or failure to provide a reasonable accommodation, please feel free to contact us.


From its law office in Sausalito, California, The DeVito Law Group serves clients in Alameda, Oakland, San Francisco, San Mateo, San Jose, San Rafael, Walnut Creek, Berkley, Modesto, San Mateo County, Marin County, Contra Costa County, Santa Clara County, Sonoma County, Napa County, San Joaquin County, and Stanislaus County.