1. What basic rights do most employees hold?
2. Under what conditions are terminations unlawful & how can an employee seek to address this grievance?
3. What are the rules regarding overtime, workers compensation, taking breaks, & other compensation issues?
All employees have basic rights in the workplace — including the right to privacy, fair compensation, and freedom from discrimination. A job applicant also has certain rights even prior to being hired as an employee. Those rights include the right to be free from discrimination based on age, gender, race, national origin, or religion during the hiring process.
Other important employee rights include:
Federal Regulations on Employment Relationships
Following is a quick summary of key federal laws related to employment. For more information, see Overview of Employment and Anti-Discrimination Laws
Title VII
Americans with Disabilities Act (ADA)
Age Discrimination in Employment Act
Fair Labor Standards Act
Family and Medical Leave Act
If you have been laid off or fired recently, and believe that you may have lost your job for an unlawful reason, you may have a right to bring a claim for wrongful termination against your former employer. Legal remedies that may be available to you include money damages and, if you haven’t been officially released yet, negotiation for an appropriate severance package that includes adequate compensation.
What Makes a Termination “Wrongful”?
The term “wrongful termination” means that an employer has fired or laid off an employee for illegal reasons in the eyes of the law. Illegal reasons for termination include:
Some of these violations carry statutory penalties, while others will result in the employer’s payment of damages based on the terminated employee’s lost wages and other expenses. Certain wrongful termination cases may raise the possibility that the employer pay punitive damages to the terminated employee, while other cases may carry the prospect of holding more than one wrongdoer responsible for damages.
Tips that Can Help
The following steps may help you improve your position if you have been fired.
The first thing you must check is whether your employer is covered by the FLSA and/or your state’s wage and hour law. Because the coverage of these laws is so broad, you can be pretty safe in assuming that your employer must comply with them.
The next step is to see whether you are considered an “exempt” or a “non-exempt” employee under these laws. If you are exempt, then you are not entitled to overtime pay; if you are non-exempt, then you are entitled to overtime pay.
If you routinely exercise discretion, supervise other employees, and/or make high-level decisions, you are probably an exempt employee who is not entitled to overtime pay. To be one of these “administrative, executive, or professional” employees exempt from overtime under the law, you must be paid on a salary basis (at least $455 per week) and spend most of your time performing duties that require you to use your own discretion and independent judgment.
In addition, if you are one of the following types of professionals, you probably are not entitled to overtime pay:
If you do not supervise others or make important decisions for your company, and if you do not fit into one of the professions described above, then you are probably entitled to overtime pay if you work more than 40 hours in a week or, in some states, more than eight hours in a day.
A severance agreement is a contract entered into between a departing employee and his or her employer. In a typical severance agreement, the outgoing employee agrees not to sue the employer for wrongful termination or related legal claims, while the employer agrees to give the employee some form of additional compensation, often called a “severance package.” Such compensation (called “consideration” in legal terms) is required in order for the departing employee’s release of liability to be valid. If there is no such consideration, the employee will retain the right to sue the employer for any claims he or she may have.
Negotiating Severance Terms
Several things should be kept in mind when considering and/or negotiating a severance agreement with an employer:
The Compensation Package
There is no federal law requiring an employer to give an employee severance pay. Severance pay is a matter of agreement between an employer and an employee. The amount and type of compensation in an given severance agreement will vary according to specific circumstances, but the amount of severance pay is usually based on a number of factors, including:
Employee Benefits and Severance
Employers are not required to provide benefits to employees as part of their compensation packages, but most employers do provide benefits to their full-time employees. Some of the most common benefits provided to employees are group health insurance and pension programs. A severance agreement may contain rights to continue in a benefit program, or it may make contributions towards the benefits that the employee will be losing by leaving the employer.
Workers’ compensation is a state-mandated insurance program that provides compensation to employees who suffer job-related injuries and illnesses. While the federal government administers a workers’ comp program for federal and certain other types of employees, each state has its own laws and programs for workers’ compensation. For up-to-date information on workers’ comp in your state, contact your state’s workers’ compensation office. (You can find links to the appropriate office in your state on the State Workers’ Compensation Officials page of the U.S. Department of Labor’s website.)
In general, an employee with a work-related illness or injury can get workers’ compensation benefits regardless of who was at fault — the employee, the employer, a coworker, a customer, or some other third party. In exchange for these guaranteed benefits, employees usually do not have the right to sue the employer in court for damages for those injuries.
Table of Minimum Paid Rest Period Requirements Under State Law for Adult Employees in Private Sector
California
Basic Standard: Paid 10-minute rest period for each 4 hours worked or major fraction thereof; as practicable, in middle of each work period. Not required for employees whose total daily work time is less than 3 and ½ hours.
Prescribed by: Administratively issued Industrial Welfare Commission Orders
Coverage 2: Uniform application to industries under 15 Orders, including agriculture and household employment.
Excludes professional actors, sheepherders under Agricultural Occupations Order, and personal attendants under Household Occupations Order
Comments: Additional interim rest periods required in motion picture industry during actual rehearsal or shooting for swimmers, dancers, skaters or other performers engaged in strenuous physical activity.
Under all Orders, except for private household employment, Division of Labor Standards Enforcement may grant exemption upon employer application on the basis of undue hardship, if exemption would not materially affect welfare or comfort of employees.
http://www.dol.gov/esa/whd/state/rest.htm#California
Table of Meal Period Requirements under State Law For Adult Employees in Private Sector
California
Basic Standard: ½ hour, after 5 hours, except when workday will be completed in 6 hours or less and there is mutual employer/employee consent to waive meal period. On-duty meal period counted as time worked and permitted only when nature of work prevents relief from all duties and there is written agreement between parties. Employee may revoke agreement at any time.
The Industrial Welfare Commission may adopt working condition orders permitting a meal period to start after 6 hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees.
½ hour, to not more than 1 hour, after 6 hours, with subsequent meal periods required 6 hours after termination of proceeding meal period. On-duty meal period counted as time worked and permitted only when nature of work prevents relief from all duties and there is written agreement between parties.
Prescribed by: Administratively issued Industrial Welfare Commission Orders
Coverage: Uniform application to industries under 14 Orders, including agriculture and private household employment.
Exempts employees in the wholesale baking industry who are subject to an Industrial Welfare Commission Wage Order and who are covered by a valid collective bargaining agreement that provides for a 35-hour workweek consisting of five 7-hour days, payment of 1 and ½ times the regular rate of pay for time worked in excess of 7 hours per day, and a rest period of not less than 10 minutes every 2 hours.
Applicable under motion picture industry
http://www.dol.gov/esa/whd/state/meal.htm#California
Additional Information
Recently, employers have been turning to arbitration as the forum for resolving employment disputes, especially those involving termination.
As a general rule, the courts will enforce an agreement to arbitrate if certain conditions are met:
Even a valid arbitration agreement cannot, however, prevent an employee from filing a charge with a government agency alleging a violation of the law. Thus, an employee who signed an agreement to arbitrate could still file a charge with the National Labor Relations Board (NLRB) or the Equal Employment Opportunity Commission (EEOC), though he or she might be precluded from filing a lawsuit.
http://public.findlaw.com/abaflg/flg-12-5a-11.html
Mediation is an alternative to resolving employment disputes via formal litigation or arbitration. A neutral intermediary (the mediator) defines the conflicting interests of the parties, explains the legal implications, and attempts to help the parties reach and prepare a fair settlement. When settlements are achieved, they are typically reached more quickly and cheaply because opposing parties have not hired opposing counsel to fight it out in court.
Primary Sources: FindLaw and US Department of Labor Website
This section researched & edited by Tiffany Bacon
General Legal Procedure
Employment issues are regulated by state and federal statues and other codes. Employments complaints come under civil law jurisdiction. Employees with complaints are strongly encouraged to talk to their employers about these problems as an initial means of resolution. Employees can also file complaints against employers with the California Department of Fair Employment & Housing or US Equal Employment Opportunity Commission (EEOC). Some complaints have statutes of limitations which means they have to be filed before a certain deadline to be considered valid except under certain exceptional circumstances.