EMPLOYMENT LAW - FREQUENTLY ASKED QUESTIONS (FAQ)

Although there are some exceptions, almost all employees in California must be paid the minimum wage as required by state law. Effective July 1, 2014, the minimum wage in California is $9.00 per hour. Effective January 1, 2016, the minimum wage in California is $10.00 per hour. There are some employees who are exempt from the minimum wage law, such as outside salespersons, individuals who are the parent, spouse, or child of the employer, and apprentices regularly indentured under the State Division of Apprenticeship Standards.

A tip is money a customer leaves for an employee over the amount due for the goods sold or services rendered. Tips belong to the employee, not to the employer.

No. Payment of a gratuity made by a patron using a credit card must be paid to the employee not later than the next regular payday following the date the patron authorized the credit card payment.

No. Labor Code Section 351 provides that the employer must pay the employee the full amount of the tip that is indicated on the credit card. The employer may not make any deduction for credit card processing fees or costs that are charged to the employer by the credit card company from gratuities paid to the employee.

Yes. Labor Code Section 351 provides that “every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for”. The section has been interpreted to allow for involuntary tip pooling so long as the tip pooling policy is not used to compensate the owner(s), manager(s), or supervisor(s) of the business, even if these individuals should provide direct table service to a patron or are in the chain of service to a patron. In addition, the policy must be fair and reasonable. Therefore, your employer can require that you share your tips with other staff members in the “chain of service”, provided that employee in the chain of service bears a relationship to the customers’ overall experience.

A waiting time penalty is a payment-penalty of fine an employer must pay any employee if the willfully fail to pay "any wages,” due to that employee at conclusion of the employment relationship. However, the assessment of the penalty is not automatic and a "good faith dispute" that any wages are due will prevent imposition of the penalty.

The penalty is measured at the employee’s daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days. This does not mean that the wages continue for a 30-day period, but that the employee may be entitled to up to 30 actual days’ worth of wages. The 30-day period is calendar days, and includes weekends, holidays, and any other days that the employee would not normally work. Payment of the wages or the commencement of an action stops the penalty from accruing.

Under California law employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours (more than six hours for employees in the motion picture industry).Unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer's premises, the meal period shall be considered "on duty," counted as hours worked, and paid for at the employee's regular rate of pay. An "on duty" meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. Of course, potential employees do not have to agree to this sort of a meal period but if they do not agree, and if the job is one, where such a meal period is required, the employee will most likely not be hired. Some examples of jobs that fit this as category where the employer and employee can agree that the employee only be given an "on duty" meal period are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.

Employers of California employees covered by the rest period provisions must authorize and permit a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer does not authorize or permit a rest period, the employer shall pay the employee one hour of pay at the employee's regular rate of pay for each workday that the rest period is not provided.

Rest breaks must be given as close to the middle of the four-hour work period as is practicable. If the nature or circumstances of the work prevent the employer from giving the break at the preferred time, the employee must still receive the required break, but may take it at another point in the work period.

You have described suing a "public entity, and the answer on the type of the government employer it is. Usually, if it is a city or county or an agency, bureau, etc., you have to ask them to resolve your issue, called a "claim", first. You must do this within 6 months of your grievance. The government employer, (public entity) has 45 days to respond, i.e., either pay your claim or reject it. If they reject it properly, i.e., by sending notice of the rejection to you in writing, you have 6 months from the date of the rejection letter to file a lawsuit in court. The notice of the rejection must give you notice of the time you have to file a lawsuit. If the government employer, (public entity) does not reject it properly, i.e., fails to notify you in writing that your claim is rejected, you have two (2) years from the date of your initial grievance to file a lawsuit.

When you think you have been discriminated against, you should also file a complaint with the Cali Department of fair Employment and Housing. This department is the main agency charged with enforcing California's anti-discrimination and anti-harassment laws. A complaint of employment discrimination must be filed within one year from the date that the alleged discriminatory act occurred. Once you file a complaint with the Department, you can request an investigation or opt out of any investigation and request a right to sue letter. The department has up to one year to complete any investigation. If you request an investigation, upon its completion, the department may punish the employer or entity that discriminated against you, or they may report that they have insufficient evidence to penalize. If this occurs, you may request a right to sue letter. Either way, whether you asked for the investigation or opted out and immediately requested a right to sue letter, you now have one year from the date the right to sue letter was issued to file a lawsuit in a court of law. Thus, if you wait almost a year to file your department complaint, you will have up to two years to file your lawsuit. It is advisable to seek legal counsel before you file the department complaint so your legal rights are fully protected.

State regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of prohibited behavior:

- Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.

- Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, or using sexually degrading words used to describe an individual.

- Physical conduct: touching, assault, impeding or blocking movements.

- Offering employment benefits in exchange for sexual favors.

- Making or threatening retaliatory action after receiving a negative response to sexual advances.

This depends on the nature of the illness and would have to be decided on a case-by-case basis. Generally, non-chronic illnesses of a short duration that do not have a long-term impact such as a cold or the flu, do not qualify as disabilities under the Fair Employment and Housing Act or the Federal Americans with Disabilities Act. However, if the temporary disability meets one of the definitions of disability contained in the Fair Employment and Housing Act, it may mean that being fired may be a violation of the law. In addition, if the illness is a "serious health condition" as defined under the California Family Rights Act, and if the employee is eligible for leave under that law, the individual may be entitled to a job-protected leave up to 12 weeks in a 12-month period. Check with your local Department office if you are unsure about your rights.

Under California law, an employer must provide up to four months disability leave for pregnant employees. If more than four months of leave is provided for other types of temporary disabilities, the same leave must be made available to employees who are disabled due to pregnancy, childbirth, or a related medical condition. Pregnancy leave is required only when a woman is actually disabled. This includes time off needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and related medical conditions.

 

 

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