In today’s politically contentious landscape, many employees find it difficult to abide by the golden rule: Never discuss politics in the workplace. This can create problems if heated political debates interfere with employees’ job duties and attentiveness to customers. Freedom of expression in the workplace differs from state to state. Employers should check with a labor rights lawyer in San Jose, CA for the reliable employment law advice they need to craft a written policy regarding political speech.
This video provides a brief introduction to this topic, including a discussion of the National Labor Relations Act, anti-discrimination laws, and the First Amendment. It’s a common misconception that the right to free speech guaranteed by the First Amendment extends to the workplace. In fact, it only prevents governmental action against the impingement of free speech. This means that employers can take action to limit political debates in the workplace, particularly if these debates could be considered harassment.
Legal protections in the workplace have come a long way from previous decades, but some employers still run afoul of employee protection laws, including those regarding pregnancy. Civil rights attorneys in San Jose, CA can offer employment law advice to employees who think they may have been discriminated against based on a protected class, such as pregnancy.
Asking About Pregnancies and Intended Pregnancies
It is not within an employer’s rights to ask about an employee’s intentions to become pregnant, or about whether she is currently pregnant. Employees have every right to consult a labor rights lawyer if they are asked this question. Likewise, employers may not ask job candidates about their intentions toward parenthood, nor can they base a hiring decision on whether a job candidate intends to become pregnant or is pregnant.
Disclosing a Pregnancy Status
Women often choose to give their employers a heads up when they are expecting to use maternity leave soon. However, not every new mother will take multiple weeks off. Women are within their rights to work up to their due date, and then take vacation time for the delivery and recovery period. Women who aren’t yet expecting, but intend to become pregnant, can use time off for doctor’s appointments and infertility treatments in accordance with the company’s policy.
Women who plan to take maternity leave given by the company—or time off requested under the Family and Medical Leave Act (FMLA)—must give reasonable notice of the leave. Not every employee is eligible for FMLA. Those who do are lawfully allowed to take up to 12 weeks of leave within a 12-month period for family or medical reasons, such as the birth of a child. FMLA leave is unpaid. At the end of the leave, employers are legally required to restore the employee’s previous position, or an equivalent position that offers the same benefits and wages.
Requesting Reasonable Accommodations
It’s possible for a pregnant woman to be unable to carry out certain job duties due to the conditions of pregnancy. During the last few weeks, for example, she may not be cleared by a doctor to take a business trip. There may also be restrictions on heavy lifting. Although employers cannot ask about pregnancies or intended pregnancies, they should be given reasonable notice about any accommodations the employee needs.
In California, employers are not legally required to provide paid or unpaid vacation time to their employees. If an employer does have an established vacation time policy, then employment law can regulate it. If you think your employer may have violated your rights with regard to your vacation benefits, consider talking to a labor rights lawyer serving San Jose, CA. An employment law attorney can determine whether your accrual or denial of vacation time violates any state regulations.
The Accrual of Vacation Time
California law recognizes that vacation time is accrued as labor is performed. The longer an employee works for the company, the more vacation time he or she accrues. Hypothetically, if Sara is given two weeks of vacation each year, then she’ll only have half of that available to her by the six-month point.
The Disposal of Unused Vacation Time
An employee rights lawyer can advise you that your vacation benefits are considered to be earnings under state law. This means that, barring a contradictory clause in a collective bargaining agreement, your employer cannot legally deny you those benefits if any are unused when you resign or are terminated. Your employer must compensate you for these unused vacation hours, corresponding with your final rate of pay.
The Legality of a Waiting Period
It’s legal—and common practice—for employers to require a probationary period for new employees, during which they do not accrue vacation time. As long as the vacation plan cannot be considered subterfuge , it’s acceptable for an employer to impose this waiting period. For example, an employee may not accrue vacation time at all the first year, followed by four weeks the second year, followed by two weeks during the third year. An employment law attorney could argue this is subterfuge, since it’s implied that two of the four weeks during the second year actually accrued during the first year. A legally acceptable vacation plan might offer zero vacation time during the first year, followed by two weeks for years two through five, and three weeks for each year following that.
The California Equal Pay Act exists to ensure that employees are paid the same amount of equal work, regardless of their sex. In 2015, the California Fair Pay Act was introduced to clarify and strengthen provisions set out by the Equal Pay Act. If you have questions about the law, either as an employer or employee, contact an attorney for employment law advice in San Jose . Here are the answers to some common questions businesses and their workers have about how the law applies to them.
What does the California Equal Pay Act say about wages?
According to the law, employers must pay employees equal wages when they do work that is “ substantially similar .” This refers to work that is done in similar working conditions and that requires a similar amount of skill and effort with a similar amount of responsibility. Pay must be equal, regardless of the employee’s sex. In order to provide unequal pay, employers must be able to establish a legitimate reason and demonstrate that these reasons are applied to all employees equally.
What is different under the new law?
In addition to the existing provisions, the new law states that employees must be paid equally for substantially similar work, even if the work is done at two different locations of the business. When employers point to specific factors to account for pay differences, the factors must be judged to be legitimate and they must be sufficient to account for the entire pay difference. The law also specifically makes it illegal for employers to retaliate against employees who seek to enforce the law with the help of a labor rights lawyer and to prohibit employees from discussing their pay. Under the new guidelines, employers must keep records of wages and employment for three years.
What should an employee do if he or she is not being compensated fairly?
If you are an employee who believes that you are not being paid fairly under the Equal Pay Act, make an appointment to discuss your case with a labor rights attorney. Your attorney can help you file a case with the Labor Commissioner’s Office or in court, depending on what is appropriate for your circumstances.
The laws surrounding employee benefits can be complex, and they differ from state to state. For this reason, it is helpful to work with an employment attorney in San Jose if you are employed in that city to find out how the law applies to you. Watch this video to find out more about what employment law says about benefits.
In some cases, employers are required to provide benefits, such as unpaid time off for an illness and the option to continue receiving insurance after leaving employment. Employers may provide other benefits at their own discretion, but they must do so without discrimination among their employees. If you suspect that your rights are being violated, consult with an employee rights lawyer to determine the best steps to take.
Whistle blowers are protected from retaliation by law. If you are involved in a whistle blowing case, hire an employee rights attorney in San Jose to ensure that you are not subject to any unlawful retaliation in your workplace, and so that you have the legal support you need if your employer does target you.
Whistle blowers’ protections are extensive. Your employer cannot deny you benefits, demote you, lower your pay or hours, or discipline you in reaction to your whistle blowing. You may not be reassigned in such a way that will impact your future potential for promotions, and you cannot be terminated from your position as the result of being a whistle blower. Your employer also cannot attempt to intimidate or threaten you or blacklist you in your industry if you seek employment elsewhere. Both federal and state laws protect whistle blowers from this kind of retaliation at work. If you feel that your rights are being violated, document the instances of retaliation and contact an employment lawyer for help. Your attorney can help you decide what to do next to ensure that your rights are protected.
Both federal and state laws make mandates about how employers must handle wages and hours for their employees. Violations of these employment laws are often the subject of employee-rights cases. If you believe your employer is not honoring your wage or hour rights, contact a labor rights lawyer in San Jose to determine if you have cause to pursue legal action. Here is a closer look at some wage and hour employment laws and how they are enforced.
What are my rights to fair wages and hours?
On the federal level, wages and hours are governed by the Fair Labor Standards Act, or FLSA. The FSLA mandates a standard minimum wage, overtime pay requirements, child labor standards, and employers’ responsibilities for record keeping. These standards apply to all employees across the country for both full and part-time work. After non-exempt employees—those who typically do not make a salary—reach 40 hours per week of work, they must receive overtime pay of at least one-and-a-half times their normal pay. The FSLA does not address paid time off for any reason, premium pay for weekend or holiday shifts, raises, or severance pay.
Additionally, states may have their own wage and hour laws. These laws can set a different minimum wage, and they may make further provisions for hours and wages. In California, for instance, state law sets standards for when employees are entitled to breaks. Laws may also exist on the local level. Employers must honor the law that gives their employees the generous breaks and highest wages.
How are these laws enforced?
The responsibility to enforce these laws depends on which laws are in question. For federal violations, the Wage and Hour Division of the U.S. Department of Labor enforces the laws. At a state or local level, the government office responsible for the law will enforce it. Filing complaints and going through the investigation process can be confusing for employees, so it is always recommended to have a labor rights attorney file disputes on your behalf. Your lawyer can ensure that your claims are filed correctly and that your rights are preserved at every stage of the process.
Wage claims, sometimes called unpaid wage claims, can be filed to request that an employer or former employer properly compensate the employee or former employee. If you think you are owed wages or another type of compensation, you have the right to consult an employment law attorney serving San Jose, CA. He or she can file a claim on your behalf if you’re owed overtime, commissions, or bonuses. A labor attorney can also file a claim if you were issued a check, but there were insufficient funds. Wage claims are appropriate for obtaining compensation for unused vacation hours, non-reimbursed employment expenses, and unpaid sick leave.
You may have left a job or been let go. Your employer is required to send you your final paycheck, but this doesn’t always happen in a timely manner. Before filing a wage claim under these circumstances, your employment lawyer may recommend checking with the Labor Commissioner or the state’s Unclaimed Wages Fund. It’s possible that your former employer couldn’t locate you, and he or she turned over the funds to the state.
You worked hard for your paycheck, and you have the right to expect you’ll receive every penny. But sometimes, whether it’s intentional or not, employers don’t always follow the rules. A labor attorney in San Jose, CA can file a wage claim on your behalf if your employer or former employer failed to pay you the wages or other compensation to which you’re entitled. Know that you have the right to seek employment law advice—and to file a wage claim—regardless of your immigration status. You will not need a Social Security number or a photo ID.
Filing a Wage Claim
Your labor rights lawyer will file the Initial Report or Claim form with the local office of the Division of Labor Standards Enforcement (DLSE). This triggers the Labor Commissioner to initiate an investigation. Depending on your specific situation, this claim may be accompanied by other forms, such as Form 155 if you were denied commission pay. You must also submit copies of documents that support your claims, such as paystubs or dishonored paychecks. Within 30 days, a Deputy Labor Commissioner will determine whether to dismiss the claim or to schedule a conference or hearing.
Receiving Notice of a Conference
In some cases, wage claims are resolved before the case goes to a conference. If you do need to attend a conference, you can expect it to be conducted in a less formal manner than a hearing. The purpose of the conference is to determine whether a hearing is needed. You don’t need to prove your case at the conference, but you should bring your employment lawyer. The deputy will ask some questions about the claim, such as whether any witnesses may be available.
Receiving Notice of a Hearing
A hearing might be scheduled after a conference. During a hearing, the parties are placed under oath, and there will be an official transcript of the proceedings. This hearing is similar to an informal trial, in that both sides have the opportunity to testify, present evidence, and question witnesses. The claim will be decided within 15 days of the hearing.
Customer-facing jobs are often partially compensated by tips and gratuities. Waiters, bartenders, gaming dealers, and tattoo artists are common examples of workers who earn part of their pay in tips. Employee rights lawyers near San Jose, CA often counsel clients who are unsure of their legal rights regarding tips and gratuities. If you suspect your employer has been unfairly deducting or withholding your tips, head for a law office right away to get the employment law advice you need.
Is a service charge considered to be a tip?
Some establishments include a mandatory service charge on the customer’s bill. Since these service charges aren’t voluntarily paid by the customer to the employee, the state of California doesn’t consider them to be tips or gratuities. If the employer decides to distribute a service charge to an employee, it would be considered a bonus.
Is it legal to force me to share my tips with other staff?
It’s customary for waiters to be required to share their tips with busboys and bartenders, but it’s still a common source of controversy. Even if the customer gives you the tip directly, you can be required to add the tip to a group pool, which will then be distributed equally among the employees. California employment law allows this if tip pooling does not benefit the owner, manager, or supervisor.
Will my tips be figured into my regular rate of pay?
Your regular rate of pay plays a role in determining your overtime pay. However, since tips are left voluntarily by your customers, they are not added to your regular rate of pay. The exception is if your employer distributes a mandatory service charge to you. Since this is a bonus and not a tip, it is part of your regular rate of pay for the purpose of calculating overtime wages.
Is my employer allowed to deduct tips from my wages?
No. Your employer is not allowed to confiscate part or all your tips, nor can your employer deduct your tips from the wages you’re owed. Similarly, employers are not allowed to pay you less than the minimum wage because you receive tips.
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