Employment Law FAQs, for the EMPLOYEE:
Below are some questions commonly asked by employees.
Yes but there is only a limited amount of time to file your claim, referred to as the statute of limitations. The limitations period varies depending on the type of claim so if you suspect your employer may have violated your rights in some way it is very important to move fast. If you wait too long you may lose the ability to pursue the claim even if it would otherwise have merit.
Generally, yes. It is the employer’s burden to track your hours worked. If there are no records of your hours worked – perhaps because the employer misclassified you as exempt from overtime and did not have you clock in or out for shifts or meal periods – then you can usually still support your claim with estimated hours worked or approximations.
Yes. It is the employer’s obligation to provide timely, off duty, uninterrupted meal periods for its nonexempt employees. It is also the employer’s burden to maintain accurate records of the start/end times of shifts and meal periods. There is some case law holding that, under certain circumstances, the failure to maintain accurate time records can create the presumption that meal periods were not provided.
Yes. In most instances, an employee cannot waive his or her right to overtime pay under California law. The same is true of expense reimbursements, vacation forfeitures, and many other legal rights provided to employees in California.
For most employee side claims, we offer a free consultation and, if appropriate, you may be able to retain the Allen Attorney Group to represent you on a “contingency” fee basis. You would not be charged by the hour but, instead, would agree that a certain percentage of any recovery would go to the Allen Attorney Group as their fees. In addition, many of California’s employment laws also provide for fees/costs to an employee who successfully sues his employer to enforce certain rights. Since the law and fee arrangements vary depending on the circumstances and types of claims being pursued, the easiest way to find out if you can arrange for a contingency fee, is to call us.
If you consult with an attorney about your legal rights, the contents of that communication are typically privileged, meaning that your employer cannot usually compel the attorney to divulge what was discussed. California law also generally prohibits an employer from retaliating against an employee for asking about his or her legal rights or filing a lawsuit to enforce such rights. The law in this area is complex so if you believe your employer may have violated your rights, you should speak with an attorney to learn more.
California law generally prohibits an employer from retaliating against an employee for attempting to enforce his or her statutory rights, such as those pertaining to overtime pay and breaks. The law in this area is complex so call for more information.
Yes. California’s employment laws are complex. Many employees do not become aware of violations until after they no longer work for the employer. In most instances, there is no requirement that you knew of the violation or complained to your employer during the time you worked there.
The short answer is “maybe.” Many employers require employees to sign various forms during orientation or sign to acknowledge that they received the employee handbook. Such documents can include arbitration agreements, on-duty meal period agreements, meal period waivers, class action waivers – to name just a few. While these agreements can potentially impact your ability to pursue a claim, or effect where that claim is heard, many of California’s employment laws create rights that cannot be waived by agreement. In addition there are often ways to invalidate agreements, especially where the employer required you to sign as a condition of employment and the agreement is otherwise unfair or one sided. The only real way to find out is to speak with an attorney.
Yes. However, since an employee cannot obtain prevailing party fees from a labor board claim, we do charge by the hour for such services. There are also ways to minimize fees such as having us review and/or prepare your filings without attending the hearing. But some employees are better off attempting to negotiate a pre-filing settlement or filing a civil complaint than filing a wage claim with the DLSE. If you would like to discuss you specific pay issue to determine the best way to proceed, please contact us.
Employment Law FAQs, for the EMPLOYER:
Below are some questions commonly asked by employers.
Yes. Typically evidence that an employer fixed a problem cannot be used to show that the prior practice was illegal. An employer can also sometimes address the problem by settling with individuals preemptively or through the use of severance agreements. It often makes sense for employers to fix a problem as soon as they can so as to limit their exposure moving forward. Every situation is different so you should consult with an attorney so they can help advise you regarding your circumstances.
Yes. While you cannot completely eliminate the risk of a lawsuit, there are certain steps that you can and should take to minimize the risk, such as documenting the poor performance and having clear policies in place prohibiting discrimination and retaliation against employees. For more information, please contact us.
Yes. While there is nothing wrong with retaining a big employment defense firm, many employers cannot afford the legal fees charged by such firms. In fact many times a case can be settled for less than the employer would otherwise pay to defend it. The Allen Attorney Group offers affordable rates to employers and has the resources to tackle most disputes, including wage and hour class actions.
Yes. If requested, we can review your wage and hour policies/practices to identify potential problem areas and suggest ways to remedy them. An employer can either pay by the hour for this service or, depending on the circumstances, pay a pre-negotiated flat rate for such an audit. Please contact us for more information.
We typically require a retainer before performing legal services but our hourly rates are always negotiable. Our business model is based on minimizing overhead and maximizing efficiencies which allows us to charge lower rates than medium or large employment defense firms. Please contact us to learn more.
Yes. We have represented both employees and employers in front of the labor board.
Yes. California law provides many potential remedies to address this situation. Which remedy is right for you will depend on a variety of factors including whether or not there is an employment agreement in place restricting an employee’s use of your proprietary information. Even without such an agreement, a claim may be brought against a former employee for misappropriation of trade secrets and conversion of company property. There are many nuisances in this area of law so you are best advised to retain an attorney with experience in trade secret litigation.
While you can settle directly with the employee, there are many unique issues that need to be addressed in a settlement agreement between an employer and employee. For example, an employee who is over forty years of age may be able to invalidate an agreement that does not provide a cooling off period or advise him of his right to consult with an attorney. Certain claims for wages and expense reimbursements cannot be released a matter of law. Additionally,there are certain terms that can be included in the agreement so as to minimize your risk of a future lawsuit, such as confidentiality and provisions addressing whether the employee is eligible for re-hire. The best way to ensure that your settlement will be enforceable, and address your specific needs, is to consult with an employment attorney.
As with settlement agreements, arbitration agreements are subject to many unique defenses, arising from both the contents of the agreement and the method by which it was acquired. Additionally, while there are some potential advantages to an employer in arbitration, there are also some drawbacks such as having to pay for the arbitrator and the lack of appellate review. Before you make a decision to require arbitration or start having employees sign such agreements, it is strongly advised that you consult with an experienced attorney who can determine whether it makes sense for your situation.