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SAN FRANCISCO EMPLOYMENT LAW BLOG

No matter where you work, it’s crucial to be aware of your rights, especially when it comes to meal and rest breaks. These periods of respite are not just beneficial for your well-being but are also mandated by state law. Understanding these laws ensures that you can safeguard your health, maintain a work-life balance, and recognize when your rights might be compromised. Below, we dive into the specifics of meal and rest break entitlements in California, elucidating the protective laws in place, delineating workers’ rights to take breaks, and offering insights on identifying potential violations of these rights.

The Legal Framework

The cornerstone of meal and rest break laws in California is the California Labor Code, augmented by various orders of the California Industrial Welfare Commission (IWC). These regulations stipulate that employers must offer certain breaks to employees, contingent on the duration of their workday.

Meal Breaks in California

Under California law, employees are entitled to a meal break of at least 30 minutes if they work more than five hours in a day. If the workday extends beyond 10 hours, a second meal break of the same duration is required. However, if the total work period is no more than 6 hours, the meal break can be waived by mutual consent of both the employer and the employee. For shifts longer than 12 hours, the second meal break can similarly be waived, provided the first one was taken.

Rest Breaks in California

For rest periods, the regulations are equally specific. Employees have the right to a 10-minute rest period for every four hours worked or major fraction thereof. These breaks should be in the middle of the work period, as practical as possible. Unlike meals, rest periods are counted as time worked and are therefore paid.

Understanding one’s rights is the first step toward ensuring they are respected. In California, the right to rest is not just a courtesy but a legal mandate. Employers are required to provide these breaks at the appropriate times and are prohibited from discouraging or impeding employees from taking them. Moreover, employees cannot be required to work during any mandated break period, and they must be allowed to leave their workplace during meals.

Spotting Rights Violations

Recognizing when the right to meal and rest breaks is violated is essential for maintaining fair workplace practices. Here are several red flags that might indicate a violation:

  • Skipping Breaks: Employers who pressure employees to skip a break, whether explicitly or through an overly demanding workload, are in violation of the law.
  • Late or Combined Breaks: Breaks must be spaced out during the work period. If rest times are routinely delayed or lumped together, or if meals are not provided at the appropriate intervals, these practices contravene the stipulated regulations.
  • Working Through Breaks: Any policy or practice that requires employees to work during their break, including being on-call, infringes upon their rights.
  • Insufficient Break Time: Official breaks must be of the minimum length specified by law. Any reduction of this time is illegal.

Furthermore, employers are forbidden from retaliating against employees who request or take their lawful rests. Signs of retaliation could include demotion, reduced hours, or unwarranted disciplinary action.

What to Do If Your Employer Prevents You From Taking Breaks

If California workers find that their employers are preventing them from taking the meal and rest breaks guaranteed under state law, they have several courses of action available to them. Employees need to know that the law is on their side and that there are specific steps they can take to assert their rights. Here are actions California workers can consider if their break rights are being violated:

1. Document the Violations

Keep detailed records of each instance where a break was denied or interrupted, including dates, times, and any relevant circumstances or communications. This documentation can be crucial in proving the occurrence of violations.

2. Speak to the Employer

Often, the first step is to address the issue directly with the employer or human resources department. Sometimes, employers may not be fully aware of the specifics of labor laws or might not realize that their practices are non-compliant. A discussion can sometimes resolve the issue without the need for further action.

3. Consult a Workplace Rights Advocate

Many organizations and unions offer resources and guidance for workers dealing with labor law violations. These advocates can provide advice tailored to your specific situation and help you understand the best course of action.

4. File a Complaint with the Labor Commissioner’s Office

The California Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE), is responsible for enforcing labor laws in the state. Workers can file a complaint with the DLSE if they believe their rights to rest and meal breaks are being violated. The complaint process includes an investigation by the DLSE, and if violations are found, the employer may be required to pay penalties and provide the missed time.

5. Consider Legal Action

In cases where the violation is clear and there’s a significant impact on the employee, legal action may be warranted. Consulting with an attorney who specializes in labor law can provide insight into the viability of a lawsuit. Legal action can result in compensation for missed breaks, penalties against the employer, and changes in workplace practices to ensure compliance with the law.

Take Back Your Meal and Rest Breaks

The laws surrounding meal and rest breaks in California are designed to protect workers, ensuring they have the necessary time to rest and recuperate during their workday. By understanding these laws, workers can stand up for their rights and ensure they are treated fairly. If you suspect your rights to meal or rest breaks are being violated, consider documenting the instances and speaking with an experienced employment law attorney like those at Le Clerc & Le Clerc, LLP. Schedule your consultation today to learn how we can help you pursue fair compensation for the breaks your employer won’t let you take.

Maternity leave is a critical period for expecting mothers, offering them the time needed to care for their newborns without the worry of losing their jobs. In California, one of the most progressive states regarding employee rights, there are robust protections in place for employees before, during, and after maternity leave. 

Understanding these rights is essential for protecting your job during this transformative time. Here’s what you need to know as an expecting mother about how you can safeguard your rights while still taking maternity leave. 

Rights Before Maternity Leave

Preparation for maternity time starts well before the day you go into labor. California employees are entitled to protections under several laws, including the Pregnancy Disability Leave (PDL), which allows up to four months of time off for women who are disabled due to pregnancy, childbirth, or a related medical condition. Employers are required to provide reasonable accommodations for pregnant employees, such as modified work duties or temporary transfer to a less strenuous position.

During Maternity Leave

The primary laws governing maternity leave in California are the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). Both laws provide up to 12 weeks of unpaid leave for the care of a newborn, adopted child, or foster care placement. To be eligible, employees must have worked for their employer for at least 12 months and at least 1,250 hours over the past 12 months. Importantly, these laws apply to employers with five or more employees, expanding the coverage compared to the federal requirement of 50 or more employees.

During this period, your job is protected, meaning you must be reinstated to the same or a comparable position upon your return. Moreover, your health insurance benefits must be maintained during your time off under the same conditions as if you had continued to work.

Rights After Maternity Leave

After parental leave, employees are entitled to return to work in the same or a comparable position with equivalent pay, benefits, and working conditions. If an employee experiences discrimination or retaliation because of taking maternity time, they may have grounds for a legal claim against their employer.

Additionally, under the New Parent Leave Act (NPLA), eligible employees are entitled to take leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. This is in addition to any disability time taken for pregnancy or childbirth, providing further job protection for new mothers.

Protecting Your Job

California moms have several strategies at their disposal to protect their jobs before, during, and after taking maternity time. Leveraging state-specific laws and best practices, they can ensure a smoother transition while safeguarding their employment status. Here’s how:

Before Maternity Leave

  1. Understand Your Rights: Familiarize yourself with the California Family Rights Act, Pregnancy Disability Leave, and any relevant company policies. Knowing your entitlements is the first step in protecting your job.
  2. Notify Your Employer Early: As soon as it’s safe and practical, inform your employer about your pregnancy and anticipated time away. Early notification helps with planning and shows your commitment to transparency and your job.
  3. Discuss Accommodations: If you need accommodations during your pregnancy, engage in a dialogue with your employer about your needs. California law requires employers to provide reasonable accommodations for pregnancy and related conditions.

During Maternity Leave

  1. Maintain Communication: Keep an open line of communication with your employer during your time away, as appropriate. Share updates about your status and any changes in your anticipated return date. However, balance is key, as this time is primarily for you to focus on your new child.
  2. Document Everything: Keep records of all communications with your employer regarding your leave and any related matters. Documentation can be crucial if any disputes arise regarding your sabbatical or return to work.
  3. Understand the Scope of Your Sabbatical: Know the difference between leave covered by PDL and CFRA, as they serve different purposes. PDL is specifically for the period you are disabled by pregnancy, childbirth, or a related medical condition, while CFRA time can be used for bonding with your new child.

After Maternity Leave

  1. Plan Your Return: Before your sabbatical ends, discuss your return to work with your employer. Confirm your start date, and if necessary, discuss any accommodations or adjustments you might need upon returning.
  2. Know Your Rights for Returning: California law guarantees your right to return to the same or a comparable job after your pregnancy, assuming you’re eligible and have complied with the notice and documentation requirements.
  3. Address Any Concerns Promptly: If you encounter any issues upon returning to work, such as changes to your position that are not comparable, address these concerns with your employer or HR department immediately. If problems are not resolved, consider seeking legal advice.

By taking these proactive steps, California moms can better protect their jobs before, during, and after maternity leave, ensuring they can focus on their families during these important times without undue stress about their employment.

Stand Up for Your Right to Maternity Leave in California

Maternity time is a right, not a privilege. In California, the law is on the side of expecting mothers, ensuring they can welcome their new family member without the stress of job insecurity. By understanding and exercising these rights, employees can protect their jobs during this important period, ensuring a smoother transition back to work after taking time away.If you believe your California maternity leave rights have been violated, the next step is to contact an experienced workplace discrimination lawyer like those at Le Clerc & Le Clerc LLP. Our skilled team has years of experience successfully representing victims of parental discrimination in the workplace. Learn more about how we can support you by scheduling your consultation today. 

In today’s evolving professional landscape, gender discrimination in the hiring process remains a critical issue that both employers and job seekers must be vigilant about. If you’re going through the job application and hiring process, understanding the nuances of gender discrimination, recognizing its occurrence, and knowing the steps to address it are crucial for receiving fair treatment. Below, we’ll break down the definition of gender discrimination, how to identify if you’ve experienced bias and the process of pursuing a discrimination claim.

What Is Gender Discrimination in Hiring?

Gender discrimination in hiring occurs when a job candidate is treated unfavorably or unfairly in the recruitment process due to their sex, gender identity, or expression. 

Gender discrimination in hiring is not only unethical but also illegal. Laws like the U.S. Civil Rights Act of 1964 prohibit discrimination in employment, including the hiring process. Employers are required to ensure that their hiring practices are fair and non-discriminatory, providing equal opportunities to all candidates regardless of genders.

How Does Gender Discrimination Manifest in Hiring?

There are many ways that gender-based discrimination can infiltrate the hiring process, such as:

  • Biased Job Advertisements: Job postings may explicitly or implicitly indicate a preference for a certain gender. For instance, using coded language like “strong male candidate” or “female preferred” can discourage qualified applicants from applying.
  • Unequal Treatment During Recruitment: This can occur in various stages of the hiring process, including application screening, interviews, and candidate evaluation. For example, if male and female candidates with similar qualifications are treated differently during interviews or are asked different types of questions (such as personal or family-related questions directed more at women), it constitutes discrimination.
  • Assumptions Based on Stereotypes: Employers may make assumptions about a candidate’s abilities, interests, or commitment to the job based on stereotypes. Examples can include assuming that a woman might not be interested in or capable of handling physically demanding tasks, or that a man might not be suited for roles traditionally seen as ‘feminine’.
  • Differential Compensation Offers: Offering different salary packages, benefits, or terms of employment to candidates based on their gender is also a form of discrimination. This might include lower salary offers to women as compared to men for the same role with similar qualifications.
  • Lack of Gender Diversity in Hiring Practices: An overall lack of diversity in a company’s workforce, especially in leadership roles, can be indicative of bias in the hiring process.

In general, if it appears that people of different genders are being treated differently during the hiring process, discrimination may be occurring. 

Identifying Gender Bias in Your Hiring Experience

Identifying gender bias in your hiring experience requires a keen observation of the recruitment process and an awareness of the subtle (and sometimes not-so-subtle) signs of discrimination. Here are steps and indicators to help you identify if you have experienced bias during the hiring process:

  • Analyze Job Advertisements: Look for language in job postings that might suggest a gender preference. Terms or phrases that seem to lean towards a particular gender or imply stereotypical roles can be a red flag.
  • Observe Interviewer Behavior: Pay attention to the behavior and attitude of the interviewer(s). Did they make assumptions based on your presentation? Were there any offhand comments or jokes that seemed to stereotype or diminish your gender?
  • Compare Treatment with Other Candidates: If possible, observe or find out how candidates of different genders were treated. Were there noticeable differences in demeanor, questioning, or time spent with candidates of another gender?
  • Assess Evaluation Criteria: Consider whether you were evaluated based on stereotypes. For example, were you judged on criteria that are traditionally associated with your presentation, or were there assumptions about your capabilities or interests?
  • Review Feedback and Communication: Analyze any feedback or communication you received during or after the process. Look for hints of bias, such as comments on your appearance, demeanor, or lifestyle choices that are unrelated to job performance but linked to cultural norms.
  • Examine Compensation Offers: If you received an offer, compare it with industry standards or, if possible, with offers made to other candidates of a different gender for similar roles. Significant discrepancies in salary, benefits, or job level can indicate bias.
  • Consider the Overall Company Culture: Research the company’s culture, diversity, and inclusion policies. A lack of diversity, especially in leadership roles, or a history of related complaints can be indicative of systemic bias.

If, after this evaluation, you believe you have experienced bias, it’s important to document specific instances and seek advice from professionals, such as employment discrimination attorneys, especially if you’re considering taking further action. 

Pursuing a Discrimination Claim for Experienced Bias

If you believe you have been a victim of discrimination in hiring, you can pursue a claim through the following steps:

  • Document Everything: Keep detailed records of your application, interview notes, correspondence, and any comments made that suggest bias.
  • Seek Legal Advice: Contact an employment attorney who specializes in discrimination cases to understand your rights and the strength of your case.
  • File a Complaint: You can file a complaint with the Equal Employment Opportunity Commission (EEOC). They will investigate your claim and determine if there has been a violation of employment discrimination laws.
  • Consider Legal Action: Based on the outcome of the investigation and advice from your attorney, you may decide to pursue legal action against the employer.

Experienced Legal Counsel for California Gender Discrimination Claims

Gender discrimination in the hiring process not only affects individuals but also undermines the integrity of our workplaces. Awareness and proactive measures are key to identifying, preventing, and addressing this form of bias. 

If you believe you’ve faced discrimination during the hiring process, we encourage you to get in touch with the experienced employment attorneys at Le Clerc & Le Clerc LLP. Our skilled team has spent years helping victims of hiring discrimination pursue justice against California employers. Together, we can work towards a more equitable and fair hiring landscape.

In California, a state known for its progressive stance on human rights, gender identity discrimination in the workplace remains a significant concern. Here’s what you should know about the intersection of gender identity and workplace discrimination, what you can do as a transgender or gender-nonconforming person to prove discrimination, and how you can get help if your workplace is mistreating you.

Legal Protections in California

California law explicitly prohibits discrimination based on gender identity. The Fair Employment and Housing Act (FEHA) offers comprehensive protections, ensuring that individuals are judged on their merits rather than their identity. The state’s robust legal protections for people based on their gender identity are among the most comprehensive in the United States. Here’s an overview of these protections:

  • Fair Employment and Housing Act: This act prohibits discrimination in employment and housing based on gender identity and expression. Employers are not allowed to discriminate in hiring, promotion, termination, or any other employment condition. It also requires employers to allow employees to dress and use facilities in accordance with their identity.
  • Senate Bill 396 – Workplace Training: Known as the “Transgender Work Opportunity Act,” this legislation mandates that all California employers with five or more employees provide training on harassment based on gender, expression, and sexual orientation. This training must be part of the larger sexual harassment training and is required every two years.
  • California Restroom Sign Law: California law requires that all single-occupancy restrooms in any business or public place be identified as all-use restrooms, thereby providing safe and equal bathroom access for transgender and gender non-conforming individuals.

These laws reflect California’s commitment to protecting the rights and dignity of people based on their gender identity, ensuring they are treated equally and without discrimination in various aspects of public life.

Understanding Gender Identity Discrimination in the Workplace

What constitutes discrimination? Gender identity discrimination occurs when an employee is treated unfavorably because of their gendered identity or expression. This can manifest in various forms, including:

  • Hiring and Promotion Bias: Refusing to hire or promote or unfairly terminating an employee because they are transgender or do not conform to traditional norms.
  • Misgendering and Name Use: Consistently using incorrect pronouns or refusing to use an employee’s affirmed name, especially after being corrected, can be a form of harassment and discrimination.
  • Unequal Pay and Benefits: Paying a transgender or gender non-conforming employee less for the same work as their cisgender counterparts or denying them equal benefits.
  • Harassment: Subjecting an employee to derogatory comments, jokes, or actions based on their identity or expression, including verbal harassment or physical assault.
  • Denial of Access to Facilities: Denying a transgender employee access to restrooms and other facilities that align with their identity.
  • Exclusion from Workplace Activities: Excluding transgender employees from meetings, team activities, or other workplace events because of their gender identity.
  • Lack of Accommodations: Not providing reasonable accommodations for transgender employees, such as allowing time off for medical procedures related to transition.
  • Forced Disclosure: Requiring employees to disclose their transgender status or pressuring them to answer personal questions about their identity or transition process.
  • Dress Code Enforcement: Enforcing dress codes that are not inclusive of transgender or gender non-conforming employees or punishing them for dressing according to their identity.
  • Retaliation: Punishing an employee for filing a complaint about gender identity discrimination, participating in an investigation, or supporting another employee’s complaint.

If you experience any of these issues related to your gender expression, you may have the right to file a workplace discrimination or harassment claim

Proving Discrimination

Proving workplace gender identity discrimination can be challenging, but several steps and strategies can be employed to build a strong case:

  • Documenting Incidents: Documenting instances of discrimination is crucial. This can include keeping emails, recording dates and times of discriminatory comments or actions, and noting any witnesses.
  • Gathering Evidence: Gather any relevant company policies and performance reviews. Discrepancies between policy and practice or sudden negative changes in performance reviews can be indicative of discrimination.
  • Witness Testimonies: Witness accounts can be powerful evidence. Colleagues who are willing to corroborate your experiences can significantly strengthen your case.
  • Comparison with Cisgender Colleagues: If possible, show a contrast in treatment between you and cisgender colleagues, particularly in areas like pay, promotions, job assignments, or disciplinary actions.
  • Internal Company Channels: Start by exploring internal grievance mechanisms. Many companies have policies and procedures for addressing discrimination complaints.
  • Legal Assistance: If internal channels are unhelpful, seeking legal assistance is the next step. An experienced employment law attorney can help you determine the best way to build your case and pursue justice for the mistreatment you’ve experienced at work. 
  • Filing a Complaint: Your attorney will help you determine if you should file a complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH investigates complaints of discrimination and can mediate or litigate on your behalf.

Remember, each case is unique, and the approach to proving discrimination will depend on the specific circumstances. It’s crucial to consult with experienced legal professionals to navigate the complexities of these cases effectively.

Get the Help You Need With Workplace Gender Discrimination Claims

Navigating gender identity discrimination in the California workplace is challenging, but understanding your rights and the avenues available for assistance is empowering. By documenting incidents, gathering evidence, and seeking appropriate help, transgender individuals can assert their rights and fight against workplace discrimination.

If you are experiencing discrimination in the workplace, it is in your best interest to consult with a legal professional who specializes in employment law. The skilled attorneys at Le Clerc & Le Clerc, LLP, can help. We have spent decades representing clients in complex employment rights disputes and have the knowledge and experience to help you pursue compensation for your mistreatment. Schedule your consultation with our California employment law firm to learn how we can help you. 

After months of nationwide high-profile labor and employment disputes, the National Labor Relations Board (NLRB) has set new standards for evaluating employee rights violations. These standards come from its decision in the case Stericycle, Inc., 372 NLRB No. 113 (2023). 

Under its new standard, the NLRB will take a much more employee-friendly approach when determining if a company’s workplace rules violate the National Labor Relations Act (NLRA). This law primarily addresses “labor relations,” such as unionization, but it heavily impacts other elements of employment law as well. 

By revising its approach to evaluating company rules for rights violations, the NLRB has made it easier for all employees to exercise their rights. Let’s explore how the NLRA protects workers nationwide, how the NLRB has changed its evaluation approach, and what that means for you. 

Your Right to Free Speech Under the NLRA

One of the laws that makes the US unique is the enshrinement of free speech as a fundamental right. However, freedom of speech means that the government may not restrict or penalize people from saying things; it does not prevent private parties from choosing to end relationships over someone’s statements. 

This means that in at-will employment states like California, employers can fire workers who make statements they disagree with. For example, it is usually legal for an employer to terminate someone for swearing or making crude remarks. However, laws like the NLRA designate types of protected speech and activities that cannot be used to make adverse employment decisions. 

The NLRA is a remarkably broad law that applies whether employees are on the clock or off-duty. Under the law, protected activities include things like:

  • Complaining about workplace issues with colleagues or in public
  • Speaking to reporters, the public, or the employer’s customers or vendors about working conditions and concerns
  • Talking about pay, benefits, and working conditions among coworkers
  • Making safety reports to state or federal agencies
  • Organizing or going on strike

Of these activities, only the last is limited to unionization efforts. The rest are common occurrences in most workplaces, regardless of whether the employees want to unionize. The NLRA protects all workers, not just organized groups.

NLRB Standards After the Stericycle, Inc. Decision

One of the major duties of the NLRB is reviewing potential violations of the NLRA. This includes reviewing company rules to see if they may have a “chilling” effect that discourages workers from exercising their rights. 

Since 2017, the agency has performed these reviews based on the standard it set in its decision on Boeing Co. (2017). Under the Boeing standard, the NLRB stated it would consider the impact of “reasonably interpreted” workplace rules on workers’ ability to exercise their rights and the employers’ justifications for the rules. This standard was interpreted as being particularly favorable for employers because it instructed the Board to deem rules to be lawful if employers’ needs outweighed their potential adverse impacts on employee rights. In other words, the Boeing standard meant that employers’ profits could be and were prioritized over individuals’ rights. 

In the Stericycle decision, the NLRB reversed its stance. In its new decision, it stated that the Boeing standard permitted employers to “adopt overbroad work rules that chill employees’ exercise of their rights” and that employers were not required to tailor their rules to promote their “legitimate and substantial business interests without unnecessarily burdening employee rights.” 

The new standard is heavily employee-focused. The Board states that future and currently active rule reviews will be performed “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” In other words, the NLRB will not take into account the employer’s justifications for rules and will instead focus entirely on the perspective of a potential employee. If it is found that an employee could reasonably interpret a rule to be restrictive, then it will be deemed unlawful. 

Do Your Employer’s Rules Violate Your Rights?

The Stericycle standard is excellent news for workers nationwide. The Board has clarified what constitutes protected actions by broadening the definition of unlawful rules. More importantly, the new measure makes it clear that simply having unlawful rules on the books could violate employee rights, regardless of enforcement. 

Examples of unlawful rules under the NLRA include prohibitions on:

  • Complaining about your employer in private or public
  • Talking to reporters or attorneys about your working conditions
  • Making “whistleblower” reports to safety agencies

The NLRB is responsible for reviewing rules that may violate the NLRA. Employees can report these violations but may not file a lawsuit in civil court. However, workers can hold companies accountable if they suffer from adverse action because of these rules. If you are retaliated against for engaging in protected activity like that which the NLRA covers, you can file a claim against your employer to pursue back pay and other damages. 

Defending Your Right to Protected Activity in California Workplaces 

The legal tide is turning in favor of employees. There has never been a better time to hold your employer accountable for violating your rights in the workplace. If you have had your hours or pay cut or been terminated for exercising your rights under the NLRA, you could have a claim against your company. If so, you should talk to the expert California employment attorneys at Le Clerc & Le Clerc LLP. Our employment law firm is dedicated to representing workers who have experienced retaliation and discrimination in the workplace. Schedule your appointment with our attorneys today to discuss your situation and learn more about how to pursue justice for workplace retaliation.

Making the switch from working as an independent contractor or hourly worker to earning a salary is a big change. Salaried positions are typically assumed to have better benefits, working hours, and working conditions than other roles. In many cases, that’s true! 

However, some employers use salaries to hide the fact that employees are being treated unfairly. Workers who receive a salary are still protected by federal and state employment laws. If you’ve just entered the world of salaried work, here’s what you need to know about your rights on the job and what you can do if you believe your employer is violating the law. 

How Are Salaried Jobs Different?

Employees who receive a salary are paid a flat amount per month or year for their work. If they take a sick day or vacation time, their paycheck is not affected. This is in contrast to hourly workers, who are paid by the hour and only get paid for the time they work. Because of this difference, salaried workers normally do not receive overtime pay. They are considered “exempt” employees, while hourly workers are “nonexempt.”

Salaried positions are also different from independent contractor roles. Salaried workers often have routine working hours, but this is not a guarantee. Employers may enforce a standard 9-to-5 schedules, but they may also require people to stay late, work weekends, or be “on-call” for no extra compensation. While an employer cannot cut someone’s pay if they don’t do this work, they can fire salaried employees for refusing as long as the employment contract permits it. Furthermore, in California, employers must provide benefits like health insurance and time off, cover unemployment and workers’ comp, and provide protected leave to most salaried employees.

In contrast, independent contractors can choose when and how they get work done as long as they meet their contract’s deadlines and quality requirements. They may also get paid a flat rate yearly, but their clients do not have to manage their income taxes, provide health insurance, or offer leave.

In short, salaried workers theoretically have more flexibility, higher income, and better benefits than other workers. However, this heavily relies on employers respecting their staff’s rights.

Salaried Workers’ Rights in California

Exempt workers are not owed overtime but have various other rights in California. Some of the most important rights you have when working for a salary include: 

The Right to Minimum Wage

The federal right to minimum wage applies to everyone, regardless of how they’re paid. California law, in particular, makes it clear that workers are owed at least the highest applicable minimum wage, regardless of how their employment is structured. 

For example, California’s statewide minimum wage will rise to $16 an hour on January 1, 2024. If someone works 40 hours a week, 52 weeks a year, they should earn $33,280 at minimum. Anyone making a salary working full-time in California must earn at least that much, or they are not getting the minimum wage. 

The Right to Correct Classification

If a nonexempt employee works more than eight hours in a day or more than 40 hours in a week, they have the right to be paid time and a half for the extra hours. This includes some people who are paid a salary. 

In California, a salaried worker is only classified as exempt if they earn twice the minimum wage – in 2024, that threshold will be $66,560. Anyone who makes less than this for full-time work is considered nonexempt and eligible for overtime. If your employer has misclassified you as an exempt worker despite having you work full-time for less than that amount, you may be owed unpaid overtime. 

The Right to Fair Employment

Every worker in the country has the right to fair treatment within the workplace. This includes:

  • Equal pay for equal work: Companies must pay people who perform “substantially equal” work the same. Roles are substantially equal if they involve roughly equivalent skills, effort, responsibility, and conditions. For example, two accountants with similar duties who work at the same office should be paid the same, regardless of gender, health, or ability. 
  • Freedom from discrimination: Workers should not be discriminated against because of protected characteristics like gender, race, religion, disability status, or sexual orientation. 
  • Protected leave: In California, anyone who works for a company with five or more employees for 12 months and performs 1250 hours of work for the company during that time is eligible for protected family and medical leave. 

If you are not offered fair pay or protected leave, or if you suffer discrimination or retaliation in the workplace, you can take legal action. 

The Right to Safe and Healthy Working Conditions 

All workers should be given safe and healthy workplaces. Employers must meet OSHA and Cal/OSHA standards to protect staff’s mental and physical health, regardless of how they pay people. This includes:

  • Keeping working environments free from physical hazards
  • Providing ergonomic furniture and equipment to prevent repetitive stress injuries
  • Providing instruction on safe lifting techniques if necessary
  • Maintaining a discrimination and harassment-free workplace culture

If an employer doesn’t maintain safe conditions, it may be violating your rights.

What You Can Do If Your Employer Isn’t Respecting Your Rights

No matter how you’re paid, you have rights in the workplace. Even if you receive a salary, you’re still owed fair pay, equal treatment, and a safe and discrimination-free workplace. If you think your employer isn’t respecting your rights, you can get help. The first step is to talk to the experienced attorneys at Le Clerc & Le Clerc LLP. Our skilled team has spent decades advocating for employees facing discrimination, unpaid wages, and harassment. Schedule your consultation with our firm today to learn how we can help you get the fair treatment you deserve under California’s employment laws.

While adoption is not the most common way of starting a family, it’s incredibly important. It benefits both prospective parents and the children who may otherwise grow up in the foster care system. Still, because it is less common, there is less social awareness of the needs and struggles new adoptive parents may face.

This is particularly noticeable in the workplace, where new parents may already struggle. Frequently, California adoptive parents experience harsher expectations and less sympathy from their employers than colleagues who welcome biological children. This can make it more difficult for your family to settle into your new life, particularly if you are refused time off to bond with your child. 

If you are considering or in the middle of the adoption process, you should be aware of parents’ rights in California. The state specifically references adoption in the California Family Rights Act (CFRA), which dictates how employers must treat new parents.

Do Adoptive Parents Have Different Rights in California?

In short, no. Once you have legally adopted a child, that child is treated as if they were biologically yours. After finalizing an adoption, you have all the rights and responsibilities as you would for a biological child. 

The same is not true of foster families. Fostering children is just as important, but fosters do not always receive the same rights as adoptive or biological parents. The child’s legal parents and the state retain rights and responsibilities for them unless and until they are adopted.

One of the crucial points where the rights of foster, adoptive, and biological parents overlap is at work. Under California law, welcoming a new child into your family in any of these situations is grounds for taking parental leave, taking time off to care for a sick kid, or otherwise prioritizing your responsibilities as a parent. 

California Parents’ Rights in the Workplace

California has a number of laws protecting parents’ rights to fair employment and time off to bond and care for their kids. These include:

  • Freedom From Discrimination: While parenthood is not a protected class, medical needs and requests for covered time off are considered protected in California. No employer may discriminate, terminate, or retaliate against a prospective parent for requesting family leave.
  • Parental Leave: The CFRA requires employers to give eligible employees up to 12 weeks of unpaid leave after welcoming a new foster child, adoptive child, or infant to their family. 
  • Paid Family Leave (PFL): If a parent is eligible for unpaid parental leave, they are likely also eligible for PFL. The program compensates workers up to 70% of their average salary for up to eight weeks of bonding leave with any new child. 
  • Childcare Time Off: Employers with at least 25 employees must grant parents and fosters are up to 40 hours a year or eight hours a month of time off to “participate in school and licensed day-care activities” with reasonable notice and after using other sources of leave first. 

There are a few points where adoption does not grant the same rights to workers as giving birth. These include:

  • Leave for pregnancy: The state grants pregnant people the option to take disability leave separately from their child bonding leave if necessary for their health. California adoptive parents do not receive this, since they are not bearing the child themselves.
  • Schedule alterations: Pregnant people have the right to request schedule adjustments and other accommodations to ensure they remain healthy during their pregnancy. 
  • Accommodations for nursing: Similarly, adoptive parents rarely receive nursing accommodations unless they are nursing another child. 

Eligibility for Parental Leave

Not every new parent is eligible for parental leave, unfortunately. The CFRA only applies to public organizations or companies with at least five employees. If you are self-employed or work for a particularly small company, your employer is not obligated to provide you leave or protect your position while you’re out. 

Additionally, even employees at covered businesses must meet two eligibility criteria:

  • You must have worked for your employer for at least twelve months
  • During that time, you must have worked at least 1250 hours for your employer

This is still better than federal FMLA leave. CFRA leave does not have exemptions for critical employees and applies to significantly more employers and employees statewide. 

Do You Need to Inform Your Employer About Adoption?

Some prospective parents are hesitant to inform their employers that they will be adopting. Since parents are not a protected class, they may fear that their employer could fire them. They may just worry that their manager will assume they will be less dedicated to the job as a parent. However, concealing your attempt to adopt a child may be unwise, and may not even be possible. 

For instance, most adoptions require the prospective parents to provide a letter from their employers to prove they have ongoing income and are in good standing. To receive this, you’ll need to tell your employer about your plans.

Furthermore, if your employer is not aware that you are adopting, they do not have to grant you time off. It is better to tell them in advance so they can plan for your eventual time off. If they do retaliate against you for requesting protected leave, you can take legal action to hold them accountable for your losses.

Standing Up for Parental Workplace Rights in California

Adopting a child is a stressful process. The last thing you should have to do once the adoption is finalized is to stand up to employment family responsibilities discrimination alone. At Le Clerc & Le Clerc LLP, we can help. We have decades of experience protecting parents’ rights in the workplace and ensuring they receive the leave they’re owed. Learn more about how we can assist you with denied bonding leave requests by scheduling your free consultation.

The federal Family and Medical Leave Act (FMLA) turned 30 in February 2023. This bill was a groundbreaking step for workers’ rights, but many argue it is no longer enough. Many legislators are advocating to expand the scope of the FMLA and providing workers with more options and security if they need to care for their families. 

While the FMLA remains the primary federal law providing workers the opportunity to take family leave, many states have implemented similar laws to address its flaws. In honor of the bill’s 30th anniversary, let’s explore the history of the FMLA, how California has improved it, and how your rights as a worker have expanded in the past three decades.

History of the FMLA

Today, a law like the FMLA seems like it makes sense. Many people take it for granted that established employees can take time off from work to recover from an illness, care for a family member, or welcome a new child to their family. However, there was a long journey before the bill was signed into law in 1993. 

Before its passage, workers had no protections if they needed to take a leave of absence. While employers could offer parental or family leave in their employment contracts or on a case-by-case basis, it was not required. As such, workers who needed to care for family often lost their jobs, and many struggled to return to the workforce afterward. 

That’s why proponents of the bill introduced the FMLA before Congress every year from 1984 to 1993. The bill was passed by Congress twice, in 1991 and 1992, but vetoed by then-president George H.W. Bush. There was strong pushback against the bill by corporate interests, which argued that allowing workers to take time off of work – even unpaid time – could hamstring businesses and hurt the economy. 

It wasn’t until President Clinton was elected that the bill was finally passed. In the three decades since, U.S. employees have used the bill more than 200 million times to take time away from work to care for their families without worrying about long-term unemployment. 

This has had an outsized effect on women and low-income families in particular. Women can better maintain their jobs after having children because they can take time to recover without risking future employment. Meanwhile, low-income workers have more freedom to care for their families without quitting their jobs. If it has affected the economy, it has been positive by keeping more people in work. 

Still, the FMLA is significantly less comprehensive than similar leave laws in countries like France, the U.K., and Spain. Many states have taken it upon themselves to improve on the FMLA to give workers more protection, safety, and security.

Improving on the FMLA: The California Family Rights Act

California’s main improvement on the FMLA is called the California Family Rights Act, or CFRA. This bill expands almost every element of the FMLA to cover more people and situations. Here’s how the two compare:

FactorsFMLACFRA
LengthUp to 12 weeks of unpaid leave with a guarantee of reinstatement and a continuation of health benefitsSame
EligibilityAny worker who has worked for a company for at least 12 months and performed 1250 hours of work for the company in that timeSame
Reason for LeaveNew child or foster child brought into the family, a serious health condition of the employee, their child, spouse, or parent, or qualifying exigencies for the active military duty of the same.New child or foster child brought into the family, a serious health condition of the employee or a designated party, or qualifying exigencies for the active military duty of the employee or a parent, child, or spouse.
Covered EmployersAny employer with 50 or more employees within 75 miles of the employee’s location, all primary and secondary schools, and all public agenciesAny employer with five or more California employees, without regard to geographic proximity, all primary and secondary schools and public agencies
ExemptionsEmployers may withhold FMLA leave to key employees: those who are among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.No “key employee” exemptions

Overall, the CFRA covers more people, offers fewer exceptions, and gives workers more freedom to care for their loved ones. 

Furthermore, California also offers the Paid Family Leave (PFL) program to supplement income for workers who take time off from work under the CFRA. In general, if a worker is eligible for CFRA, they are likely to be eligible for PFL as well. This allows California workers to take time off for pregnancy, new children, or a loved one’s illness without sacrificing all of their income. 

There is no equivalent federal program; people in states without the PFL program do not have a national alternative to cover their financial losses while taking unpaid leave. Federal advocates of expanding the FMLA are calling for this to change and for many elements of the CFRA to be adopted nationwide. However, this has not yet occurred.

Defending Your Rights Under the CFRA

While the FMLA still leaves much to be desired, California’s CFRA has closed many of the gaps. Your employer cannot deny it as long as you’re eligible for CFRA leave. If they do, you have the right to take legal action for your losses.At Le Clerc & Le Clerc, LLP, we specialize in helping workers like you defend your rights under the CFRA. If your employer has violated your right to leave under the bill, we can help. Learn more about how we can hold your employer accountable, fight for your job, and help you pursue unpaid wages by scheduling your consultation today.

California has some of the country’s strongest laws regarding parental leave. However, the relative strength of these laws does not mean all workers are guaranteed the same amount of leave. Some employers choose to offer their workers additional time off as a benefit to attract more talent. 

This private, employer-based leave is invaluable for many new parents. The problem is that since it is not guaranteed under the law, it can be more difficult to hold employers accountable if they attempt to block workers from taking the promised time off. Here’s what you need to know about different types of parental leave in California and what to do if your employer attempts to block you from taking the time off you were promised in your employment contract.

The Difference Between FMLA Leave and Employer-Based Leave 

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both guarantee workers up to twelve weeks of protected, unpaid leave in a twelve-month period. These laws specifically allow eligible employees to take time away from work after welcoming a new child into the family with a guarantee that their job will still be there when they get back. 

California also goes a step further. Under the state Paid Family Leave (PFL) program, people who need to take time off for a family reason, such as bonding with a new child, can request partial wage-replacement benefits for up to eight weeks. Eligible workers can receive 60-70% of their weekly wages for those eight weeks from the government. Generally, most employed people qualified for PFL is also eligible for CFRA or FMLA leave, allowing them to take publicly-funded paid parental time away from work.

Under the CFRA, only employers with five or more employees or state and local governments must provide workers with unpaid time away. Furthermore, you need to have been working for your employer for at least 12 months and 1250 hours before you specifically are eligible for this time. 

This is very different from the programs some employers offer. Private employers with parental time off programs can set significantly different terms for eligibility, length, and pay as long as they are equivalent to or better than those already guaranteed by the state. For example, some employers only require workers to be at the company for 90 days before they are eligible. Others, like Google, provide workers with up to 24 weeks of leave, an unprecedented amount in the U.S. 

When Can an Employer Deny Parental Leave?

The problem with employer-based paternity or maternity time is that it is not granted the same protections as state-mandated leave. Instead, it is treated like other benefits like vacation time or sick leave. While employers are required to live up to their contracts with their employees, it can be significantly more difficult to fight back if they do attempt to violate these agreements. Unless an employer fails to meet the requirements set by the state of California, failing to provide the contractually promised amount of time off is considered a contract violation, not a workers’ rights violation.

In addition, private new child policies often have stricter scheduling requirements than government alternatives. According to the U.S. Equal Employment Opportunity Commission, an employer can deny requests for medical leave when it is not protected under federal or state law in many circumstances. 

This includes situations where finding someone to replace you for the duration of leave would be particularly difficult, or the length of your break will pose “significant difficulty or expense” to your employer. You must read your employment contract and your employer’s HR policies carefully to determine what amount of time off you are guaranteed under your agreement. 

This does not mean that you have no recourse, though. If your employer promised you paid parental time and refuses to grant it to you, they are breaching the employment contract. You can still take legal action to pursue the compensation and time away you’re owed.

What to Do If You’re Denied Parental Leave Under Your Company’s Policy

California courts take violations of employment contracts very seriously. You can fight back if your employer reneges on your contract or makes it unreasonably difficult to access the parental leave you were promised. Here’s how to get started:

  • Gather relevant documentation: Collect paperwork such as your employment contract and HR policies for your company. These should provide a clear idea of the type of compensation and time off you were offered. It would help if you also gathered any communications regarding your leave request and any updates to the policies that may have occurred after you were hired.
  • Submit a formal complaint with HR: If you have not already done so, submit a formal, written complaint to your HR department, and keep a copy of that complaint yourself. Request a written response rather than a verbal one to ensure there is a paper trail if your request for time away is denied again. 
  • Consult with an experienced attorney: Skilled legal counsel is vital any time you have a contract dispute with your employer. Your attorney will help you understand your rights and determine the best path forward, whether that is negotiating with your employer or filing a lawsuit.

At Le Clerc & Le Clerc LLP, we specialize in helping parents and families who have been impacted by unfair and illegal employment practices. We are available to help you pursue the time off you were promised in your employment contract so you can spend time with your new child. Learn more about how we can help you stand up for your right to paid parental leave by scheduling your consultation with our skilled California employment law attorneys today.

In 2020, California voters chose to pass Proposition 24, the California Privacy Rights Act (CPRA). As of January 1st, 2023, it has officially gone into effect. This bill is an expansion of the California Consumer Privacy Act (CCPA) intended to provide consumers and workers with greater privacy rights. 

Before 2023, employers had relatively few obligations toward their employees’ data privacy. Employees did not have the right to request what data has been collected by their employer or prevent it from being used or sold. However, with the CPRA going into effect, employers must now treat all human resources information and similar data shared with or from other businesses with the same care as consumer data. 

This is excellent news for workers. Covered businesses now need to take extra precautions regarding your personal information and protect you from risks like data breaches and identity theft. Here’s what you should know about the CPRA’s impact on your rights to data privacy and what you can do if your employer violates them.  

New Privacy Rights Guaranteed for Employees

The CPRA grants employees, job applicants, and contractors the same rights given to consumers under the CCPA. These six rights are:

  • The right to know what information your employer has collected about you and how it is used or shared
  • The right to opt out of having your information sold or shared with other parties
  • The right to limit the use or disclosure of your sensitive personal information to necessary business tasks
  • The right to request that data not directly related to your employment is deleted
  • The right to correct collected data that is inaccurate
  • The right not to face discrimination or retaliation for exercising any of the above rights

In short, your employer must tell you what information it collects about you, why it’s needed, and who has access. In addition, you can block your employer from collecting or sharing most information and request that it be corrected or deleted entirely.

Privacy Requirements for Employers

Applying the CCPA to employers was controversial because of the new requirements it imposes on them. That’s why the initial CCPA specifically stated that employees were temporarily exempt from the rights guaranteed to the average consumer. This exemption was intended to allow employers to prepare for the demands of the CCPA.

However, now all covered organizations must follow the law’s requirements. An employer must follow these restrictions if it:

  • Achieves $25 million in gross revenue annually
  • Makes 50% or more of its income from selling or sharing consumers’ personal information
  • Buys, sells, or shares the personal information of 100,000 or more consumers, households, or devices

All employers subject to the CCPA and CPRA must ensure they can honor the rights listed above. This includes setting up processes to track, correct, and delete employee information and prevent it from being collected upon request. In addition, employers must be able to provide information about the following:

  • What employee information they collect
  • What types of sources they gather information from
  • The commercial purpose for gathering this information
  • The types of third parties with whom each kind of data is shared

This allows workers to understand how their data is used and make informed choices about whether to opt-out, request deletions, or limit its use.

Benefits of the CPRA

The primary benefits of the CPRA are obvious: you regain control over your personal information. If you work for a covered employer, you have the right to minimize the data it collects and keep your private life separate from work. 

Furthermore, the bill increases transparency by requiring organizations to track and report how employee data is used and stored. Employers can no longer use their workers’ information for financial gain or potential discrimination without their knowledge.

This is partly why the rights enshrined in the CPRA are closely modeled after the European Union (EU) General Data Protect Regulation of 2016 (GDPR). Countries subject to the GDPR have discovered that many employers will collect employee information irrelevant to their employment and use it in discriminatory ways. 

For example, in 2020, the clothing retailer H&M was found to be keeping records about employee relationships, religious affiliations, and health, and using this information to make employment decisions. This is just as illegal in the EU as in the US. H&M faced a $37.7 million fine and compensated employees for the violation. 

If this type of blatant privacy violation and discrimination happens in the EU, it is not unlikely that it is also happening in the US. The CPRA may not only help protect your control over your data, but it could also protect you from discrimination.

What to Do If Your Employer Violates Your Data Privacy Rights

You have the right to data privacy under the CPRA. If your employer violates your rights, you may be able to take action. 

In most cases, the California Attorney General is responsible for identifying whether an organization violates the CCPA and CPRA and suing non-compliant businesses. However, in certain circumstances, you can act directly. If your unencrypted personal data is stolen from your employer, you can file a lawsuit in pursuit of compensation for the losses you suffer. Furthermore, if you discover your employer is using your data in discriminatory ways, you can also file workplace discrimination claims.

This is where Le Clerc & Le Clerc LLP is proud to help. We are dedicated to protecting the rights of workers in California. We are available to help you take a stand against unjust violations of your privacy and discrimination in the workplace. Learn more about how our expert attorneys can defend your rights by scheduling a free consultation today.

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