Frequently Asked Questions
Berkeley Employment Discrimination Attorney Answers
Frequently Asked Questions on California Employment Law
If you have been subjected to discrimination or harassment at work, or if you have been denied overtime pay, you may have questions about your rights but not know where to go for help. Below are answers to some of the most frequently asked questions we encounter at the Law Office of Anthony J. Sperber, as we advise and represent workers in Berkeley and throughout the San Francisco Bay area on labor and employment law matters. Hopefully, the following FAQs will answer your questions. If you need to talk to an attorney about an employment situation that is troubling you, contact our office for a free initial consultation.
Does an at-will employee have any rights?
Definitely. While an at-will employee may be fired at any time for “a good reason, a bad reason, or no reason,” an at-will employee may not be fired for an illegal reason. At-will employees are protected from unlawful discrimination, retaliation for whistleblowing or other protected activity, and other causes of wrongful termination. Also, many people who think their employment is at-will actually have statutory or contractual rights of which they are unaware.
What is a Right-to-Sue letter, and what does it mean?
When you file a complaint with the DFEH or EEOC, they have a period of time to investigate the complaint. When that time expires, or sooner, they may issue you a Right-to-Sue letter. This means that the agency is not going to prosecute the complaint on your behalf, and you are free to file a lawsuit against your employer if you desire.
Should I file my discrimination complaint with EEOC or DFEH?
When both state and federal laws cover the same type of discrimination, you can file your charge with either agency. If state and federal laws both apply, the agency you file with will likely also file a dual charge with the other agency. Additionally, the City and County of San Francisco has many more classes of people protected from employment discrimination than at the state and federal levels. These include height, weight, marital status, creed, AIDS/HIV status, sexual orientation, domestic partner status and gender identity. If your complaint is based on discrimination in one of these areas, you way wish to file with the San Francisco Human Rights Commission. Talk to your employment law attorney before you file a charge to ensure that you file with the most appropriate agency for the best chances of success on your claim.
Can I get my job back if I was wrongfully terminated?
Possibly. There are many remedies available for a wrongful discharge, including reinstatement with back pay and interest.
Can my employer fire me and replace me with a less experienced worker in order to save money on payroll?
Not necessarily. If you are 40 years old or older, you may be protected from discrimination by the Age Discrimination in Employment Act (ADEA) and the Fair Employment and Housing Act (FEHA). You may have an age discrimination claim that you should discuss with an experienced employment discrimination lawyer.
What kinds of disability are protected under the Americans with Disabilities Act?
The ADA defines a disability as any physical or mental impairment which substantially limits one more major life activities. There are many elements to this legal definition, such as the meaning of “impairment,” “substantially limits,” and “major life activity.” Also, you are protected if you have a record of disability or if you are regarded as having a disability, even when you don’t.
California disability law is broader than the ADA, so many impairments that would not qualify as a disability under the ADA may qualify under FEHA.
What makes the workplace a “hostile environment”?
A hostile workplace environment is one form of sexual harassment. It occurs when there is unwelcome conduct of a sexual nature that is so severe or pervasive that it makes the workplace a hostile place to be. This can include supervisors or other workers making obscene gestures or comments, graffiti in the bathroom, posters or pornography in a break area, inappropriate touching or fondling and many other types of activities.
Another type of unlawful sexual harassment is quid pro quo sexual harassment. This occurs when a supervisor tries to date or obtain sexual favors from a subordinate, and conditions favorable or unfavorable job treatment on the employee’s response.
Both hostile environment and quid pro quo sexual harassment are illegal, and there are steps you can take to end them.
Am I exempt from overtime if I am a salaried employee?
Not necessarily. To be exempt from overtime, you must be paid on a “salary basis” (at least $455 a week), but you must also fall into a recognized exempt category, such as a professional, executive or administrative employee. Each classification has its own definition and set of criteria. Even if your boss or your job description says you are exempt, you may be misclassified. Contact our office for an evaluation of whether you are truly exempt or whether you have been wrongfully denied overtime to which you are entitled.
