The Facts

According to the facts discussed in the opinion, the employees worked at an In-N-Out Burgers (INO) meat processing facility. The employees filed a complaint against INO alleging sex and national origin discrimination, sexual harassment, and a hostile work environment, among other claims. In response, INO filed a motion to compel arbitration, noting that the employees electronically signed INO’s agreement to arbitrate through an online training module. INO further argued that employees failed to exercise their right to opt out of the agreement within 30 days of receipt. Employees filed their opposition to the motion. One employee claimed she did not see the agreement until after she filed the lawsuit, concluding that her electronic signature was forged. In support of this theory, she noted that English was not her primary language, and she did not know how to use a computer. The other employee claimed that he signed the agreement because his supervisor threatened him by advising him to “get a lawyer” if he refused. In response, INO attacked both employees’ credibility. The trial court granted INO’s motion to compel arbitration, and the arbitrator found in favor of INO.

The Appeal

On appeal, the employees argued that INO failed to prove the first employee assented (i.e., expressed agreement) to the arbitration agreements; both plaintiffs validly opted out of the agreement; and the agreement was unconscionable. The appeals court rejected these arguments. First, the appeals court affirmed the court’s finding that the first employee agreed to the agreement. The court rejected the employee’s contention that someone else must have signed the agreement without her consent. Most notably, the appeals court credited INO’s electronic records showing that the employee electronically signed the agreement by entering her unique employee identification number and PIN. Because the PINs were completely confidential, no one could have signed the agreement except the employee. In light of several employees’ declarations that no one else logged into this employee’s computer, the trial court was entitled to credit those declarations over the employee’s claim.

Next, the appeals court found that the employees did not timely opt out of the agreement to arbitrate. The employees attempted to argue that they could opt out within 30 days of receiving employment records from their attorneys. However, the plain language of the agreement required them to opt out within 30 days of receiving and signing the agreement. Because they did not opt out within the requisite time period, the agreement applied to their dispute. Finally, despite finding some procedural unconscionability, the court held that the agreement was enforceable.

Contract Law and Employment Claims

Under contract law, an agreement has procedural unconscionability if the circumstances of contract negotiation and formation have resulted from unequal bargaining power. It also requires oppression or surprise. Here, the most prominent procedurally unconscionable element included INO requiring employees to sign the agreement in order to complete their training module. To opt out, employees had to go through multiple additional steps. While some aspects of the agreement were somewhat oppressive, the procedural unconscionability was not so great as to invalidate the agreement. Therefore, because the agreement was enforceable, the appeals court affirmed the decision in favor of INO.

If you have questions about how an arbitration agreement will affect your case, contact the Hardin Law Group to speak with a California employment law attorney

The Facts

According to the facts discussed in the opinion, the employee began working at Kat Von D’s Wonderland art gallery. In 2014, shortly after beginning her new position, the employee signed an agreement with the company to arbitrate all disputes related to her employment. A few months later, the gallery closed, so the employee sought work elsewhere. In 2017, Kat Von D hired the employee to work at her new business, a tattoo parlor. She did not sign a new arbitration agreement at that time. Two years after she was terminated, the employee filed a lawsuit alleging retaliation and other claims related to her employment at the tattoo business. The employer filed a motion to compel arbitration based on the previous agreement the employee had signed. The trial court denied the employer’s motion, reasoning that the agreement only applied to the employee’s position with Wonderland in 2014. The employer appealed.

The Court’s Decision on Appeal

On appeal, the employer argued that the arbitration agreement applied to the employee’s employment with the tattoo business. It argued that the agreement had no expiration date, expressly applied to “future disputes,” and defined “the Company” to include entities affiliated with Wonderland, including the tattoo parlor. The appeals court rejected these arguments. As the court explained, ambiguities about the scope of an arbitration must be resolved in favor of arbitration. However, the court cannot force a party to arbitrate if they never agreed to do so. Here, the appeals court held that the previous agreement did not cover the employee’s position with the tattoo parlor. While the agreement did not contain an expiration date, it solely referred to the employee’s period of employment with Wonderland.

Second, relying on general principles of California contract law, the court found the meaning of “employee’s employment. . .with Company” to refer to a single period of employment with Wonderland and not the tattoo parlor or any other affiliates. Additionally, the court interpreted “future disputes” to be limited to future disagreements arising from the employee’s employment with Wonderland. Finally, the court cited several cases to demonstrate that its reading of the agreement was consistent with state and federal contract law governing arbitration agreements. Therefore, the appeals court affirmed the trial’s court denial of the employer’s motion to compel arbitration.

Do You Have Questions for a Dedicated Employment Lawyer in California?

Agreements to arbitrate can interfere with employees’ ability to recover compensation for acts of discrimination, harassment, and retaliation. If you are seeking to bring a lawsuit against your current or former employer, contact the California employment lawyers at Hardin Law Group for assistance.

If the defendant satisfies this burden, known as prong 1, a California court will dismiss the lawsuit unless the plaintiff can show prong 2: a probability of success on the merits of their claim, meaning a jury could find in their favor later on. In the employment context, an employer may file an anti-SLAPP motion to dismiss after an employee alleges discrimination or retaliation based on employment decisions such as hiring, firing, or promotions. Recently, a California appeals court denied a County’s motion to dismiss a former employee’s retaliation claim under California’s anti-SLAPP law.

The Facts

As the opinion explains, the dispute arose when an assistant district attorney, who was acting as the interim district attorney for the County of Placer, believed he was bribed into hiring a County supervisor’s spouse in exchange for a position as the permanent district attorney. Without providing an explanation, the County then placed the employee on paid administrative leave and locked him out of his workplace pending appointment of the new district attorney. He then received a call from a County supervisor informing him that she knew he received a bribe. After interviewing and not receiving the district attorney position, he understood that the new district attorney would demote him, so he resigned. The employee then sued the County alleging whistleblower retaliation for complaining about the bribe. Notably, the County was also investigating the employee after a complaint of discrimination, harassment, and intimidation against him and other managers. Based on this investigation, the County moved to dismiss the lawsuit under California’s anti-SLAPP law. The trial court denied the County’s motion, and the County appealed.

The Court’s Opinion

On appeal, the court found that the County failed to meet its burden under the anti-SLAPP law to show that the employee’s claim arose out of protected activity. The County claimed that the employer’s retaliation claim arose from the County’s investigation, which it argued was protected activity. First, the court found that the investigation did not constitute “protected activity.” The anti-SLAPP statute defined protected activity to include “any written or oral statement” made before an “official proceeding authorized by law.” Although the internal, government investigation was an official proceeding, the County failed to show it made a written or oral statement during the investigation that prompted the employee’s allegations.

Second, the employee’s complaint did not reference the investigation at all but rather solely concerned the bribe. Because courts determine the protected activity underlying a claim from the plaintiff’s allegations, the fact that the employee did not make any allegations about the investigation was fatal to the employer’s motion to dismiss.

Additionally, the court explained that where the defendant succeeds in meeting prong 1 in the employment context, the employer’s alleged adverse action must itself be the speech or petitioning activity. Therefore, the mere fact that the County placed the employee on leave after its investigation does not mean that the employee’s retaliation claim “arose from” the investigation. Accordingly, the court concluded that the trial court properly denied the County’s anti-SLAPP motion, allowing the employee’s lawsuit to go forward.

Speak with an Experienced Los Angeles Employment Attorney Today

If you are seeking to hold your employer accountable for retaliation, discrimination, or harassment, contact the California employment lawyers at Hardin Law Group and learn how to prevent an anti-SLAPP motion from ending your case.

FEHA Provides Greater Protections than Federal Law

The Fair Employment and Housing Act is known for its broader scope and stronger protections compared to federal anti-discrimination laws, making it a cornerstone of civil rights legislation in California. FEHA enhances worker protections beyond those provided by federal law in several important ways:

Broader Coverage of Employers: While federal laws like Title VII of the Civil Rights Act of 1964 apply to employers with 15 or more employees, FEHA lowers this threshold to include businesses with five or more employees. This expansion means that more workers in smaller businesses are protected under California law.

Wider Range of Protected Classes: FEHA includes all the protected classes covered by federal law, such as race, color, religion, sex, and national origin. Additionally, it covers some categories not explicitly protected under federal law, like sexual orientation, gender identity, gender expression, and genetic information.

Harassment Protections for All Employees: Under FEHA, all employees, regardless of the size of the business, enjoy protection against harassment based on any of the law’s specified categories. This includes employers with fewer than five employees, a protection not offered by federal law.

Stronger Pregnancy Discrimination Protections: FEHA provides greater protections for pregnant employees. For example, California law requires employers to provide reasonable accommodations for pregnant workers and prohibits discrimination against pregnant employees, which is more comprehensive than the federal Pregnancy Discrimination Act.

More Comprehensive Disability Accommodations: FEHA mandates employers to engage in a timely, good-faith, interactive process to determine reasonable accommodations for employees with disabilities. This requirement is more robust than under the Americans with Disabilities Act (ADA).

Stricter Anti-Retaliation Provisions: While federal law prohibits retaliation against employees who file discrimination claims, FEHA imposes stricter penalties and broader definitions of what constitutes retaliation, offering more comprehensive protection for employees who exercise their rights under the Act.

Higher Damages and Penalties: Under FEHA, there is no cap on compensatory or punitive damages, unlike federal laws, which caps damages based on the size of the employer. This means potential higher payouts in discrimination and harassment lawsuits.

Mandatory Training Requirements: California’s FEHA requires employers with 50 or more employees to provide at least two hours of sexual harassment training to all supervisory employees, which is not a federal requirement.

Language Discrimination: FEHA includes provisions against language discrimination, requiring employers to justify any “English-only” policies and prohibiting language-based discrimination unless it is necessary for the operation of the business.

In summary, California’s FEHA provides broader protections and coverage, includes more categories of protected classes, imposes stronger obligations on employers regarding harassment and discrimination, and allows for greater penalties and damages compared to federal law.

Has Your Employer Violated Your Workplace Rights?

If you believe that your employer has engaged in unlawful employment practices, the Hardin Law Group is here to help explain your rights and what you can do to enforce them. Attorney James Hardin is a dedicated Los Angeles employment lawyer who exclusively represents employees in all types of employment cases, including wrongful termination, harassment, discrimination and wage and hour violations. To learn more, and to schedule a free consultation with Attorney Hardin today, call (310) 606-2122 or connect with us through our secure online contact form.

2024 Developments in California Employment Law

First, California has expanded its paid sick leave laws. Paid sick leave allows employees to take time off to care for themselves or a loved one. Under SB 616, employers must allow employees to accrue at least 80 hours of paid sick leave or grant 40 hours annually. The law raises the minimum number of hours employers in the state must provide. Employers were required to expand their paid sick leave allotments starting on January 1, 2024. If your employer includes sick leave in your paid time off, the employer does not need to provide additional paid sick leave, but the paid time off must meet the same minimum requirements.

Effective January 1, 2024, the state has also raised its minimum wage to $16.00 per hour. Employers must also provide a minimum of 30 minutes for meal breaks. Additionally, workers who fall under certain occupational exceptions must receive twice the minimum wage, totaling $66,650 per year. If you work in computer software, you may fall within the Computer Software overtime exemption, which requires employers to pay a minimum of $55.58 per hour.

Additionally, SB 699 and AB 1076 clarify the state’s ban on non-compete agreements, which prevent employees of one employer from engaging in lawful business with a competitor company. First, SB 699 clarifies that non-compete agreements are unenforceable in California regardless of when, where, or whether the employee signed it, even if it was signed outside of California. If an employer attempts to coerce an employee into signing an agreement, even without intent to enforce it, the employer may be sued. Second, AB 1076 requires a broad construction of the ban on non-compete agreements unless one of the narrow exceptions applies.

Another significant change is an amendment to California’s existing laws that govern retaliation suits against an employer. The previous law assigned the burden of proof to the employee to show the employer retaliated against them. Under SB 497, the burden of proof in retaliation cases shifts to the employer if it fires or otherwise retaliates against the employee up to 90 days after for engaging in protected activity. The employer can still rebut the presumption of retaliation by showing the employee was fired or reprimanded for a legitimate reason. If the employer retaliates against the employee, the new law requires the employer to pay up to $10,000 in civil penalties per employee.

In addition to these new laws, the California legislature has also enacted laws requiring paid leave for reproductive loss such as miscarriage or failed adoption; banning discrimination or retaliation for the off-duty use of cannabis; and requiring employers to adopt a Workplace Violence Prevention Program and maintain a record of every incident of violence in the workplace.

Speak with an Experienced Los Angeles Employment Attorney for More Information

California’s new employment laws may affect your legal claim against an employer. If you have questions about the impact of these laws on your rights or your suit against an employer, contact our team at Hardin Law Group today to learn whether you can take legal action.

In the complex and ever-changing landscape of employment law, understanding what constitutes an “adverse employment action” is crucial for both employers and employees. As a leading Los Angeles employment law firm, the Hardin Law Group wants to clarify these often misunderstood aspects of employment law. This is particularly important in California, where the definition and implications of adverse employment actions are significant under both state and federal employment laws.

What is an Adverse Employment Action?

At its core, an adverse employment action refers to any action taken by an employer that negatively impacts an employee’s job or working conditions. This broad definition includes a range of actions from demotions and pay cuts to less obvious forms such as unfavorable job assignments or changes in job responsibilities.

In California, the Fair Employment and Housing Act (FEHA) sets a high standard for protecting employees against adverse actions, especially when they are linked to discrimination or retaliation. California courts have adopted a broad interpretation of what constitutes an adverse employment action, ensuring extensive protection for employees.

Below are some of the most common examples of adverse employment actions under California law:

• Termination or Firing: The most clear-cut example of an adverse action, where an employer fires an employee.
• Demotion: A reduction in rank, responsibility, or job title, often accompanied by a decrease in salary.
• Reduction in Pay or Hours: Any significant cut in an employee’s salary or scheduled working hours.
• Negative Performance Evaluations: Unjustifiably poor performance reviews may be adverse if they affect promotions, raises, or continued employment.
• Denial of Promotion or Advancement Opportunities: Failure to promote an employee can be an adverse employment action if the employer’s decision is based on discriminatory reasons.
• Hostile Work Environment: Creating or allowing a work environment that is intimidating, hostile, or offensive.
• Retaliatory Actions: Any negative action taken in response to an employee exercising their legal rights, like filing a discrimination complaint.

Proving Adverse Employment Action

To establish an adverse employment action in a Los Angeles employment lawsuit, you’ll typically need to demonstrate that the action had a material and detrimental effect on the terms, conditions, or privileges of your employment. It’s not just about showing that the action was unfavorable but that it significantly altered the employee’s job status or career prospects.

Key Take-Aways

Adverse employment actions go beyond just firings or demotions. They encompass a range of employer decisions that can negatively impact an employee’s job. In California, the broad interpretation under FEHA provides substantial protection to employees.

Speak with an Experienced Los Angeles Employment Lawyer About Your Situation

If you’ve been subjected to an adverse employment action, consulting with an experienced LA employment law attorney can provide you with the information you need to decide how to move forward. The Hardin Law Group offers thoughtful advice and representation, ensuring your rights and interests remain protected. To learn more, and to schedule a free case evaluation with Attorney Hardin today, call (310) 606-2122 or connect with us through our secure online contact form.

The protections afforded by both federal and state laws ensure equal opportunity for those with disabilities by creating guidelines within the workplace that focus on reasonable accommodation. As a worker in the state of California with a disability, it is important that you understand what your employer’s responsibilities are with respect to reasonable accommodation and the interactive process.

What is Reasonable Accommodation?

The Americans with Disabilities Act (ADA) is a civil rights initiative that was signed into law in the 1990s, it outlaws discrimination against people with disabilities in situations such as the workplace, transportation, schools, and in the public and private sphere. Title I of the ADA is responsible for most of the protections set forth for individuals with disabilities in the workplace. An important protection afforded by the ADA is reasonable accommodation, which focuses on holding employers accountable to provide modifications for employees or applicants with disabilities concerning the actual job or the physical environment of the workplace.

If your job performance is hindered due to your working environment, there are remedies that you can seek from your employer. Your company should always explore reasonable accommodation for employees with disabilities. In order for this to occur, a supervisor needs to be notified that there is a need for an accommodation. This is where the interactive process begins.

What is the Interactive Process?

As an employee, requesting a reasonable accommodation begins the conversation which is known as the interactive process. This can start in many ways and the discussion lengths can vary. However, if the accommodation request is easily discernable and the solution is obvious then this process could be resolved a lot quicker.

When it comes to beginning of the interactive process, an employee has many options to request an accommodation. It can occur formally in writing, casually in conversation, or brought to the attention of a supervisor verbally. Although it is not required by the ADA to submit a formal request, it is a good practice to keep things in writing so that both you and your supervisor have a traceable point of reference.

Once the accommodation request is submitted, your employer should work with you to understand what barriers you face in your day to day when trying to perform your essential job responsibilities. Once this evaluation begins, the employer should begin isolating specific issues and identifying potential solutions that could help mitigate the barrier brought forth by the employee.

Once the potential solutions are identified, the employer will evaluate whether or not this creates an undue hardship for the company. The key guideline that should be followed during due process is cooperation on behalf of the company. It is crucial that they demonstrate good faith in determining the best outcome to ensure equal opportunity for all of their employees.

If you feel as though your company has not practice reasonable accommodation or the interactive process in good faith, contact our team to learn the legal remedies available to you.

Generally speaking, a full-time employee in the state of California is eligible for up to 12 weeks of unpaid family or medical leave. If you have worked for your employer for over a year and have lost your job as a result of taking leave that is protected by either federal or state law, then you may be entitled to monetary damages.

Types of Protected Leave

Life is unpredictable and there are many instances when an employee may need to take leave. In circumstances like these, the state of California has laws in place to protect an employee’s right to take leave so long as it meets the necessary requirements. However, even with these protections, there are situations where employers may still violate these rights. The types of leave that are protected by state and federal laws are, but not limited to:

• Family Leave: Companies with 20 or more employees are required to provide unpaid family leave for new parents in order to bond with a new child, so long as the employee has been employed for over a 12-month period.
• Pregnancy Disability Leave: This type of leave is available for employees both part-time and full-time with no length of employment requirements. PDL is typically taken late in the third trimester leading into childbirth and can last up to four months depending on the individual’s capability of performing essential job functions.
• Sick Leave: During the Coronavirus pandemic, sick leave has become an essential for employees across the United States. Sick leave for employees that are suffering from serious health conditions or employees that need to take care of family members suffering from a serious health conditions have a right to sick leave if they have worked at the company for over 12 months
• Military: Should an employee decide to enlist in the military, they have a right to do so for up to five years without jeopardizing their career. After returning from service, the employee has a right to request reemployment and the employer is not allowed to terminate without cause until a year after the employee’s return date.
• Jury Duty: Time off to perform a civic responsibility like jury duty in the state of California `is protected from unlawful termination. Jury duty can be time consuming as you are attending proceedings at the schedule of the court. However, an employer is not able to fire an employee for participating in jury duty for any period of time.

If you are a California worker that has been fired on leave, it is important to know your rights. Employees that take extended leave can sometimes be the victims of retaliation firings or unlawful terminations as a result of discrimination. If you or someone you know has been wrongfully terminated as a result of taking protected leave, contact our team today.

To start, the state of California considers employment as at will. This means that your employer does not have to give cause or even notice when firing an employee, which makes proving wrongful termination incredibly difficult. Although employment at will can make wrongful termination cases more challenging, there are still viable legal remedies available.

Types of Wrongful Termination

The California state policy that establishes employment at will creates a flexible work environment for both the employee and employer, however it can cause issues down the line should one party choose to sever ties.

Even with increased protections for employers with respect to their ability to fire without cause or notice, if it violates a law or public policy then it is illegal. A few examples of wrongful termination that violate public policy or the law include, but are not limited to:

Harassment

The legal definition of harassment according to the Fair Employment and Housing Act is any behavior that is unwelcomed which is pervasive or sever towards an individual. Harassment can be sexual or non-sexual and can feel incredibly debilitating for the victim being subjected to it. The main types of harassment are, but not limited to:

• Quid Pro Quo: This type of harassment occurs when a supervisor or co-worker requests sexual favors from an individual in exchange for a work-related advantage or as a preventive measure to stop the threat of adverse effects to your job.
• Hostile Work Environment: A hostile work environment occurs when an individual is subjected to offensive behavior by a colleague or supervisor that creates a toxic work environment.

Discrimination

In the workplace, discrimination can occur when a supervisor or co-worker treats an individual unfairly because of one or more of these protected classes:

• Sex or Gender;
• Sexual Orientation;
• Age;
• Religion;
• Race;
• Nation of Origin;
• Marital Status;
• Veteran or Military Status.

Retaliation

Firing an employee as a retaliation tactic is illegal and protected by the Equal Opportunity Commission. Retaliation firings can be a result of an employee speaking out about unfair treatment or any issue they are affected by. A few examples that can lead to retaliation firing are, but not limited to:

• Filing a harassment or discrimination claim against a coworker or supervisor;
• Filing for workers’ compensation;
• Refusing or reporting illegal activity;
• Bringing attention to or refusing to work in unsafe conditions;
• Reporting or requesting lost wages;
• Taking or requesting medical leave.

How to Understand Your Rights

Although wrongful termination can be difficult to prove, with the right legal team, you will be able to defend your rights. If you were fired and believe that it was unlawful due to a violation of public policy or law, then contact our the experienced employment attorneys at Hardin Law Group to learn what legal action can be taken today.

Harassment in the workplace can occur in many forms. Under FEHA, or the Fair Employment and Housing Act, the term harassment is defined as any behavior targeted against a protected class that is either unwanted or offensive, which can become pervasive or severe. Whether the harassment is sexual, non-sexual, malicious, or unintentional, it is unlawful and can greatly affect your career.

Working in a hostile environment can be incredibly unsettling, make sure you know your rights when it comes to workplace harassment.

Hostile Work Environment Harassment

A hostile work environment can be fueled by either sexual or non-sexual harassment. It is defined as any act that is pervasive or severe involving offensive conduct towards a co-worker or subordinate that creates an abusive atmosphere at work.

Harassment at work can arise from biases against a class protected under FEHA. Whether it is accidental or malicious, discrimination and harassment due to prejudice is illegal. In the state of California, protected classes afforded by FEHA are listed, but not limited to:

• Race;
• Disability;
• Religion;
• Age;
• Nation of Origin;
• Marital Status;
• Sex;
• Pregnancy;
• Gender;
• Military or Veteran Status.

Sexual harassment in any form is unacceptable and unlawful in the workplace. This type of harassment involves inappropriate language, sexual advances, or unwanted touching. Another type of sexual harassment that may arise at work can include inappropriate treatment or comments as a result of an individual’s sex or sexual orientation.

Know Your Rights

Often times workplace harassment victims feel afraid or unsafe to speak out for fear of losing their job. As an individual in the workplace, it is crucial to know the rights that protect you from harassment.

There are many labor laws put in place in order to protect workers from harassment in the state of California.

If you feel you are experiencing a hostile work environment, a course of action that you can take is filing a complaint internally. In some cases, smaller companies do not have protocols in place for complaints of this matter. The best way to proceed in instances like this is to put the company on notice of the inappropriate behavior you are experiencing. In most cases, companies that receive a complaint or notice will conduct an internal investigation in order to determine the best solution.

If an internal investigation results are unsatisfactory there are other courses of action you can take. The Department of Fair Employment and Housing (DFH) and the Equal Employment Opportunity Commission (EEOC) have systems in place for those that need to file a formal complaint in order to ensure that an investigation is conducted. Once the investigation is concluded, the EEOC or the DFH will bring together both parties to negotiate an amicable resolution.

If these negotiations don’t go the way you expected, reach out to our experienced legal team at Hardin Law Group to learn the legal remedies available to you.

As an independent contractor, you are a self-employed individual under contract that provides a business with goods and services. The definition for employee is very similar to that of an independent contractor with one important distinction, control. Employees of a company are under stricter controls versus an independent contractor, for example a contractor can negotiate their rate on a project basis and is able to pick and choose assignments.

The definitions of an employee and contractor are so similar that the California Supreme Court decided to create further clarification with a system known as the ABC Test. The ABC test helps determine when a worker is considered an independent contractor rather than an employee.

Uthe ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:

• The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
• The worker performs work that is outside the usual course of the hiring entity’s business; and
• The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Why Does It Matter?

Knowing the difference between an independent contractor and an employee is important because often times workers are misclassified in the workplace. Employee misclassification occurs frequently because it can be an opportunity for a company to save money, even though it is unlawful.

As a full-time employee, you are entitled to retirement plans, healthcare coverage, Medicare, worker’s compensation, social security, business reimbursements, income tax withholdings, overtime wages, and unemployment insurance. If your job responsibilities align with an employee, but you are misclassified as an independent contractor, your rights are being violated. Misclassification can not only result in significantly less compensation for you, but it also denies the government funds needed to sustain public benefits.

If you believe that you have been misclassified as an independent contractor and have unpaid overtime wages and are in need of the healthcare plans afforded to full-time employees, it is crucial that you take action. There are many legal remedies that can be taken and often times can result in monetary damages. Reach out to our team today to understand what you can do to protect your rights as a worker in the state of California.

On a federal level, the government passed The Families First Coronavirus Response Act (FFCRA) as well as the Coronavirus Aid, Relief, and Economic Security Act. In California, the state legislature passed Senate Bill (SB) No. 1159 and the Assembly Bill (AB) 685.

As the United States braces for another wave of the pandemic, it is crucial that you understand the protections afforded to you as an employee.

What Are Your Protections

The Families First Coronavirus Response Act

In most cases, the FFCRA affords protections for employees with respect to paid sick leave. As a full-time employee there are three types of protections for paid sick leave.

The first involves paid sick leave for up to 80 hours for an employee that is unable to work because they are following the CDC quarantine guidelines or are experiencing COVID-19 symptoms.

The second protection afforded is paid sick leave at two-thirds the regular rate of the employee for up to 80 hours if they are unable to work as a result of a legitimate need to take care of an individual suffering from COVID-19 or a child due to school or childcare closures.

The third protection afforded by the FFCRA is paid expanded family and medical leave for an employee that has been employed for more than 30 days, if they are unable to work due to a legitimate need to care for a child whose primary care or school was closed due to COVID related reasons. This protection allows additional leave for up to 10 weeks and provides the employee with two-thirds of their regular rate.

AB 685

Being in the workplace during an ongoing pandemic can be very stressful, and fortunately the California government has put protections in place with the intentions of keeping employees safe. With Assembly Bill 685, employers are now held responsible for notifying employees of any potential exposure to COVID-19 in the workplace.

Senate Bill No. 1159

California passed SB 1159 in an effort to help protect the California worker from the uncertainty of COVID-19 in the workplace. As a worker in California, it is crucial that you feel secure and SB 1159 increases access to workers compensation for those that contract COVID-19 within fourteen days of an outbreak at work.

In order to determine an outbreak at the workplace, it must meet the below criteria:

• If the office is ordered closed by either a federal or local government entity;
• If four individuals test positive for COVID- 19 at a workplace with under 100 employees;
• If four percent of employees at a workplace with over 100 employees test positive for the virus.

If you are an employee and feel any of the protections afforded to you by both state and federal government were violated by your employer, reach out to our team today.

1. Don’t Just Say It

People think it’s enough to complain, request or report things orally to their employer. But what are you going to do when the supervisors denies you ever talked with them Avoid the “he said, she said” by communicating with your employer by emails. Create a record of any exchange by sending letters (certified mail, return receipt).

2. Keep A Journal

Don’t rely on memory. Write everything down. The names of witnesses, dates, times, places, what was said, documents involved—the more detailed, the better. Also, make sure you never leave the journal unattended at work, where your boss might be able to access it. That is a surefire way to compromise your case before you even act.

3. Get Witnesses

Talk to whoever witnessed the illegal action taking place. Confirm whether they saw it. Try to get them on your side. Do this carefully and you will have a much stronger case.

4. Don’t Play The Lawyer

Don’t go waving around a few legal terms you learned on the internet. Chances are you’ll get them wrong & make yourself look like the bully. The best way to reinforce your case is to follow the above steps and contact a reliable employment attorney at the earliest possible convenience.

Looking for the best Employment Attorney in California? ContactHardin Law Group.

• Employee’s full name and social security number;
• Address, including zip code;
• Birth date, if younger than 19;
• Sex and occupation;
• Time and day of week when employee’s workweek begins;
• Hours worked each day;
• Total hours worked each workweek;
• Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”);
• Regular hourly pay rate;
• Total daily or weekly straight-time earnings;
• Total overtime earnings for the workweek;
• All additions to or deductions from the employee’s wages;
• Total wages paid each pay period;
• Date of payment and the pay period covered by the payment.

Your employer needs to preserve payroll records, collective bargaining agreements, sales and purchase records for at least three years. Records on which wage computations are based should be retained for two years, i.e., time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Additionally, in today’s workplace, merely cutting an employee a check is not enough — California law specifically requires that California employers keep accurate records of an employee’s work hours and compensation. There are pluses and minuses to this mandate. Not only does thorough recording keeping assist with accounting, it can also serve as evidence in a potential employee claim for overtime, missed meals, and/or missed breaks. Without these records, it is almost an impossibility for an employer to defend against such a claim.

Under federal law, what employee data must a California employer keep? Section 7 of each Industrial Welfare Commission (IWC) Order details an employer’s record keeping requirements for each employee:

• Full name;
• Home address;
• Occupation;
• Social Security number;
• Birth date (if under 18);
• Time records showing when the employee begins and ends each work period, including time records for meal breaks that show when the break started and ended;
• Total daily hours worked;
• Total wages paid;
• Other compensation paid per payroll period;
• Total hours worked in the payroll period; and,
• Applicable rates of pay including piece rate or incentive plans including an accurate production record.

For more information on what records your employer is required to maintain, contact the Orange County employment lawyers at Hardin & Associates today.

The recent case involved two employees that had a profanity-laced conversation via Facebook about their employer. After receiving a screenshot of this conversation, the employer, a non-profit organization based in California, made the decision to terminate the two employees, citing concerns based on their Facebook conversation.

The employees fought back, alleging that their termination violated federal law because their Facebook conversation constituted protected concerted activity. Protected concerted activity generally requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. While the administrative law judge agreed with the employees that they were engaged in concerted activity (given that the crux of this conversation revolved around their disagreement with how management ran the business), he held that the employees crossed the line since the comments were damaging to the employer’s reputation.

What can we take away from this NLRB decision? Not every social media post is protected by the Act. In other words, if an employee makes a statement that is so egregious as to cause harm to her employer’s business or is of such character as to render the employee unfit for further service, an employer may be allowed to take corrective action, up to and including termination.

Your specific case should be discussed with an experienced employment lawyer in Orange County. For more information on social media usage by employees in the California workplace, contact the skilled Orange County employment law attorneys at Hardin & Associates today.

Arbitration is generally supposed to be faster, cheaper, and more predictable than litigation. Benefits many Orange County business owners appreciate. However, in a recent case involving homebuilder D.R. Horton, none of these expectations came true. In its arbitration agreement, D.R. Horton prevented employees from suing in court and from bringing class-action claims in arbitration. A disgruntled employee took issue to this, bringing his fight to the National Labor Relations Board. Along with a class of similarly-situated employees, he sought alleged unpaid overtime wages.

Ultimately, the NLRB issued a decision holding that D.R. Horton’s agreement was unlawful because 1) it prevented employees from filing class action claims in court or in arbitration, and 2) it could reasonably be read as prohibiting employees from filing unfair labor practice charges.

On appeal, D.R. Horton argued that the Board’s decision should be rejected because it conflicted with the Federal Arbitration Act (FAA), which generally requires that arbitration agreements be enforced as written. Agreeing, in part, the Court found that the FAA trumps the National Labor Relations Act (NLRA) to the extent that the NLRA renders unlawful an arbitration agreement that prevents employees from pursuing class-action claims. The court explained that its conclusion was consistent with numerous Supreme Court cases holding that the use of class-action procedures is not a substantive right and that parties should not be compelled to arbitrate as a class unless they agreed to do so. The court also pointed out that every other circuit to have considered this issue has indicated that it would not defer to the NLRB’s rationale, holding arbitration agreements containing class waivers enforceable.

However, the court did find that D.R. Horton’s agreement could reasonably be read as prohibiting employees from filing unfair labor practice charges.

For more assistance on analyzing whether your employment law claim is covered by a valid arbitration agreement, contact the experienced Orange County employment attorneys at Hardin & Associates.

Generally speaking, women in California make 84% of what men make and some of the state’s biggest industries have even larger pay disparities. In Silicon Valley, for example, men with Bachelor’s Degrees make 40% than women with the same education, and men with a graduate or professional degree make 73% more. The tech industry is not alone when it comes to unequal pay for men and women. If you believe that your employer is paying you less because you are a woman, the law is on your side. Contact an experienced Orange County employment attorney to discuss your legal rights.

Under the new Fair Pay Act, employers are required to pay men and women the same for “substantially similar work,” not just the exact same job. There are a few very narrow exceptions, such as if the differences are based on productivity, merit, and/or seniority. In other words, the law does not just require the same pay for the same job, but for different jobs that are similar in terms of effort, responsibility, and skill.

What’s more, under California’s new law employees are allowed to openly discuss their pay without fear of retaliation. Even though all US workers have a legal right to discuss compensation with each other, about half say that doing so is either discouraged, prohibited, or could lead to disciplinary actions, making it challenging for women trying to address unequal pay. Not any more. You and your co-workers will be allowed to discuss your wages and any attempt on your employer’s part to silence you is unlawful.

Lastly, employees will be allowed to take action against wage gaps between different worksites, not just at their own location. This means that if your co-worker at a different office is making more than you for doing “substantially similar work” you may be able to bring a claim against your employer and recover the financial compensation you are rightfully owed.

For more information about California’s Fair Pay Act, or to discuss gender inequality at your place of work, contact the experienced employment attorneys at Hardin & Associates today.