You work hard for your paycheck, and every dollar counts. So you might be surprised to learn that getting underpaid is quite common, and not every employee realizes it’s happening. Employee rights lawyers recommend verifying the accuracy of every paycheck you receive before you deposit it. If you do think you’re being underpaid, talk to an employment law attorney in San Jose, CA right away.
Look for common pay stub errors.
Many different payroll errors can result in you receiving a smaller paycheck than you should. As you examine your pay stub each week, ask yourself the following questions.
- Are my hours correct?
- Is the rate of pay correct?
- Did I get paid time-and-a-half for overtime?
- Did my employer take out unusual deductions?
Report the mistake to human resources.
It’s possible that a too-small paycheck is simply due to a clerical error. Visit your company’s human resources department to discuss the issue. You have the right to request a timely payment of the money you’re owed. In most cases, your employer should include compensation in your next paycheck.
Maintain your own work records.
Whether or not you’ve previously detected paycheck errors, it’s good practice to retain your pay stubs and keep your own records. Keep a small notebook in your car or desk, and write down the times you arrive at work and leave each day. Add up the hours and make a note of whether you’re owed overtime pay.
Talk to a labor attorney.
Contact an employment lawyer, and schedule an initial consultation. Bring your recent pay stubs and any other relevant documents, such as your employment contract if you have one. Your lawyer will review these documents, explain the applicable labor laws, and discuss your options. In some cases, employers are more willing to pay what they owe their employees when they learn that a lawyer has been retained—even before an official complaint is filed. If you’re still denied the pay you’re entitled to, your employment attorney can file a lawsuit.
Talk to your co-workers.
Your lawyer may recommend that you speak privately with your co-workers to find out if they’re also being underpaid. You and your co-workers may pursue a collective action against the employer. In litigation, there can be strength in numbers.
Employers in California must be mindful of both federal and state laws. This can get complicated because these laws can evolve frequently, especially when they pertain to marijuana. Although Californians can legally possess and use marijuana for medical and recreational purposes, federal law still classifies it as a Schedule I drug that has no medicinal use. This means that it’s possible for employers to face legal difficulties if they knowingly continue to employ workers who use marijuana. To keep your company out of legal entanglements, seek employment law advice from a labor attorney in San Jose, CA who is familiar with these matters.
Drug-Free Workplace Policies
Not all companies may be affected by the marijuana use of employees, as long as the substance is not taken to or used on the company’s campus. However, if your company is subject to the 1970 Federal Controlled Substances Act, it must have a Drug-Free Workplace Program in effect. Companies are subject to this law if they are nonprofits that receive federal grants (of any amount), or if they are for-profit entities that receive $100,000 or more in federal contracts. An employment lawyer can draft a drug-free workplace policy to include in your employee handbook.
Marijuana-Related Work Issues
Beyond the legal requirements, there are other issues for employers to consider. Employees who work while under the influence are more likely to be involved in workplace accidents. Their productivity may suffer, and the mere fact that some people are working under the influence of marijuana may affect the morale of the entire workplace.
Medical Marijuana Considerations
Labor attorneys are often asked if employers must make exceptions for workers who have a valid medical marijuana card. Remember that marijuana is still illegal under federal law. Even under state law, California courts have made it clear that it’s within an employer’s rights to terminate or refuse to hire an individual who tests positive for marijuana, with or without a medical marijuana card.
An intriguing question regarding unlawful termination has been making headlines lately: Are NFL team owners legally able to fire players who use time on the field to protest social injustices? Despite the urgings of the 45 th President, whether or not an NFL owner can let a player go because of protests is a bit more complicated than simply saying, “You’re fired.” Employment lawyers serving San Jose, CA would defer to the player’s contract and the collective bargaining agreement when determining whether a termination is unlawful or not.
In the typical workplace, an at-will employee can be fired at any time for any reason, as long as the termination does not arise from discrimination based on a protected class. Employees who work under a contract, such as NFL athletes, can only be fired under the terms specified in the contract. The typical NFL contract requires athletes to conduct themselves in a manner that befits the “public respect.” It’s possible for an NFL owner to fire an athlete if he or she claims that the athlete’s protests have diminished the public respect. However, since fans are about evenly split between disliking the protests and appreciating the true meaning behind them, the athlete could possibly argue that protesting in such a way actually upholds the public respect.
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.
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.
Now that a minimum wage increase is employment law in California, how are employers coping, and what are the rights of employees? If you have questions about the minimum wage law, be sure to seek employment law advice from a labor attorney in San Jose, CA so you understand your responsibilities as an employer and your rights as a worker.
Watch this video to see how the law has impacted businesses in Fresno, where unemployment is in the double digits. A wage hike of 50 cents per hour became law in January 2017, and there will be an increase each year until it reaches $15 an hour in 2022. Businesses in Fresno fear that they will have to close because they can’t afford to pay workers that much, but under the law, employers have little wiggle room.
Although many people believe that LGBTQ discrimination in the workplace is prohibited by federal law, it is actually only addressed on a state-by-state basis. If you believe that you have been discriminated against based on your sexual orientation or gender identity in San Jose, CA, then you will need to consult with a labor attorney in California to see what your rights are in that state.
The Employment Non-Discrimination Act has been unsuccessfully introduced in Congress multiple times since 1994. The Act would add LGBTQ discrimination protections in the workplace to national anti-discrimination laws, forcing states that currently don’t have these protections to adopt them. Most recently, in 2013, the law passed the Senate but failed to make it out of the House, leaving LGBTQ discrimination in the hands of the states.
In a highly charged political climate, many people wonder if they have the right to engage in political speech at work. Can your boss fire you for saying you don’t like his or her candidate? Can you pass out political pamphlets in the workplace, or does that violate labor law? Political speech at work is a complex issue, so if you think your rights have been violated, hire an experienced employment law attorney in San Jose, CA , to help you determine how to proceed. Here is a look at some of the things that are—and are not—protected when it comes to political speech at work.
Expressing Political Views: Not Protected
Your right to free speech does not necessarily extend to your right to engage in political speech at work. Employers in privately owned companies can decide to ban political discussions of any kind in the workplace. For public sector employees, there are more free speech protections, but these employees can legally have their political speech restricted as well. Generally, employees can be fired for engaging in political speech at work when it interferes with their jobs in some way, whether it takes time away from their duties or causes them to treat customers or co-workers differently who do not agree with them. However, if an employer seems to target employees whose views differ from their own and don’t apply the rules fairly, then he or she could be violating anti-discrimination laws.
Off-Duty Political Activity: Protected
Generally, employees can engage in political activities outside of their working hours without fear of retaliation from their employers. An exception would be if the employee’s activities violated any morality clause or similar contract point. For instance, if your contact allows you to be terminated if you are arrested and you are rounded up during a political protest, your employer could fire you because your arrest violated the terms of your agreement.
Political Displays at Work: Not Protected
Your employer can prevent you from wearing political shirts, buttons, hats, and other pieces of clothing through the use of a dress code. He or she can also decide to prohibit any kind of political signage in the workplace, as long as the rules are applied equally. An exception is that non-managerial employees are legally entitled to wear and display labor union insignia.