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.
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.
Having a harassment policy protects your employees from a hostile work environment and protects you from lawsuits. Small businesses need to have harassment policies in place in the same way that larger corporations do, and developing one is easier than you may think. It’s important to work with an employment law attorney in San Jose when you create your policy to ensure that you are not overlooking any important elements that it should include. These tips will help you make a policy that works for your company and your employees.
Explicitly State What Is Prohibited
Spell out in clear, straightforward terms which groups are protected from harassment . This language can include stating that harassment based on sex, race, color, religion, age, or disability will not be tolerated. It is important to identify all groups who are protected from harassment under federal, state, and local laws. Since these groups may vary depending on where you live, consult with a labor attorney in your area who is experienced in working with your local laws.
Create a Procedure for Complaints
Your policy should tell employees exactly how they can make complaints if they believe they have been harassed. It is helpful to have one person who is not directly responsible for supervising an employee who can take these complaints. For instance, you may wish to state that any manager can take a harassment complaint. State that employees will not be protected from retaliation for making a complaint or cooperating in a harassment investigation and that the employee’s confidentiality will be protected as much as possible.
Make a Response Plan
Your harassment policy should also describe how managers should respond to complaints and provide a timeline for harassment investigations. Clearly define the consequences for harassing employees. Your plan should also include a framework for keeping the employee who made the complaint up to date with the investigation and any action taken against the person who violated the policy.
Although women have made considerable strides toward greater equality in the workplace , civil rights attorneys in San Jose, CA would generally argue that significant disparity remains. Many women, for example, have sought employment law advice from their legal representatives regarding wage discrimination. Wage discrimination occurs when a female employee makes less than a male employee solely based on sex, and not because the female employee is less qualified or less educated.
You can hear more about this important issue when you watch this featured video or consult a labor attorney. You’ll learn about a study that reveals women tend to make just 75.5 cents for every dollar that men earn in similar positions. You’ll also hear from a trial attorney, who dispenses some invaluable employment law advice for women who are interested in learning more about their rights.
Age discrimination is prohibited under federal and state law, but countless employees suffer its effects regardless. If you’re age 40 or older, you should know how to identify the signs of age discrimination and how to exercise your legal rights with the help of a labor rights lawyer serving San Jose, CA. Another way to protect your job is to familiarize yourself with some basic employment law advice, such as by taking a proactive approach during the course of your career.
Know your legal rights.
Your employment law attorney can review your case to determine if your legal rights may have been violated. Under a federal law—the Age Discrimination in Employment Act (ADEA)—employees and job candidates are protected from age-based discrimination if they are ages 40 or older. This law does have some limitations. For instance, it doesn’t apply to elected officials, military personnel, or independent contractors. The ADEA does apply to:
- Federal, state, and local government entities
- Labor organizations with a minimum of 25 members
- Employers with a minimum of 20 employees
- Employment agencies
Since the ADEA does not extend protections to employees of companies with fewer than 20 workers, many states have enacted additional protections. In California, employees are protected from age discrimination if the company has at least five employees. The same age range applies. Your state rights are explained in the Fair Employment and Housing Act (FEHA).
Take a proactive approach to fight discrimination.
There is no guarantee that not having experienced age discrimination in the past will mean you won’t in the future. It’s best to be proactive about protecting your legal rights. During the course of your career, you should request specific feedback at each job review meeting. Request written copies of your job reviews, and keep these records indefinitely. A track record of positive job reviews can be helpful later on if you need to have a labor rights lawyer file an age discrimination claim.
Identify potential signs of age discrimination.
If you do suspect that you’ve been the recipient of discriminatory actions, contact an employee rights lawyer right away. Age discrimination isn’t always easy to spot. Sometimes, a mature worker may be told, “You have too much experience for this position,” or “Your salary history is too high.” These statements can indicate unlawful discrimination.
Many companies have workplace policies that prohibit harassment, but filing a complaint with human resources isn’t the only remedy available to wronged employees. When certain criteria are met, workplace harassment is also a violation of federal and state laws. If you feel you’ve been targeted, consider seeking employment law advice from an experienced labor attorney in the San Jose, CA area. Be sure to thoroughly document each incident, and bring this written record to your initial consultation with your employment law attorney.
Under the law, workplace harassment is defined as unlawful and unwelcome acts that are discriminatory in nature. Harassment may stem from discrimination based on race, age, sex, religion, color, disability, national origin, or genetic information. Unlawful harassment falls into one of two categories. First, workers are forced to endure the acts in order to maintain their employment. Or the conduct is widespread or severe enough in the workplace to constitute an intimidating, abusive, or hostile work environment.
The Civil Rights Act of 1964
Labor attorneys can file a workplace harassment complaint under Title VII of this federal law. Title VII provides the foundation for anti-discrimination complaints. It prohibits employers from engaging in discriminatory actions against employees based on their sex, religion, race, national origin, or color. This federal law applies to employment agencies, labor organizations, and federal, state, and local government organizations. It also applies to private and public universities.
The Americans with Disabilities Act (ADA)
This monumental piece of legislation was passed in 1990. It gave employees with disabilities broad legal protections against discrimination in the workplace, in addition to protections regarding public accommodations, telecommunications, and public services. Under the ADA, individuals with disabilities are protected from suffering discriminatory harassment in applying for a job, hiring, firing, promoting, job training, and compensatory procedures.
The Fair Employment and Housing Act (FEHA)
FEHA is a California law that applies to employers with at least five employees. Under FEHA, employers are required to take reasonable steps to both prevent and correct harassment and discriminatory practices. FEHA takes a proactive approach toward workplace harassment, as it requires employers to have written policies to prevent discrimination, retaliation, and harassment. Current and future employees must be provided with a copy of this policy, but they still have the legal right to consult an employment lawyer if they feel they’ve been the subject of harassment.
When you have a workplace dispute, an alternative to a lengthy and costly court case could be mediation. If your attorney offers mediation services in San Jose, CA , or recommends mediation as an appropriate choice for your case, here is what you need to know.
During mediation, the goal is not for one side to emerge as a winner but rather for both sides to compromise and come to an agreement that they can both accept. During an employment dispute, legal mediation could address things like wage and discrimination issues under the guidance of an impartial, third party mediator, who facilitates the negotiations. Your lawyer can still represent you during mediation to ensure that your rights are not being violated. Once you reach an agreement during mediation, it is legally binding, so both you and the other party must adhere to the terms.
Although mediation may not be the right choice for the most contentious cases, it can help you avoid the stress and expenses of going to court while getting a decision on your case much more quickly.
Sexual harassment in the workplace is a serious issue that can be incredibly distressing. Fortunately, you have options and you have rights. If you think you are being sexually harassed, consult a labor rights lawyer in San Jose, CA, as soon as possible to determine how you can best protect your rights. Here is what you need to know.
You have the right to report to a person with whom you are comfortable.
You are not obligated to report sexual harassment to your boss. In many cases, immediate supervisors are either involved in the harassment or have a relationship with the person who is being accused. You can report your harassment to anyone in your workplace that has the ability to take action. In some companies, there is a designated human resources person who is in charge of sexual harassments complaints who can help you. However, you can report your harassment to anyone with whom you are comfortable as long as he or she is able to take some kind of action on your behalf.
You have the right to be protected against sexual harassment as defined by your company.
Companies are required to take action against harassment that is severe, pervasive, and that creates a hostile work environment under federal law. Most workplaces have sexual harassment policies that far exceed that benchmark, and you have the right to expect to be protected from harassment as defined by your employee handbook. For instance, if your company has a policy against employees asking each other for dates and someone makes you uncomfortable by asking you out, your workplace is obligated to address that situation as harassment.
You have the right to pursue an investigation outside of the workplace.
You don’t have to accept the results of any internal investigation into sexual harassment that is conducted by your employer. You can contact a labor rights lawyer if you are unhappy with your workplace’s evaluation. A lawyer can help you decide if you should file a claim against your employer.
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.