Wrongful Termination
Wrongful termination is one in which an employer has discharged in violation of a legal right of the employee. It is not enough for the employee to simply show that he/she was treated unfairly but the person must show that the firing was “wrongful” meaning one or more legal rights were violated. Almost every state has adopted the legal concept of “employment at will” which means that it is presumed that the employer has the right to terminate someone with or without a reason and likewise the employee has the right to quit at any time with or without a reason.
There are a number of exceptions to the employee at will doctrine (the exceptions vary depending upon where the person worked) and those exceptions generally fall into the broad categories listed below:
- Violations of Public Policy
- Breach of Contract
- Breach of Implied Contract
- Breach of Covenant of Good Faith and Fair Dealings
- Discrimination based on age, race, sex, disability, religion and/or national origin
- Whistle-blower Statute
The severity of each of these violations can vary based on the laws broken. Some can result in statutory penalties, while others mean that the employer must pay the wrongfully terminated employer for lost wages, expenses, and punitive damages.
Wrongful termination complaints can be filed one of two ways: with a government agency that enforces labor laws, or in a private lawsuit. If your employer’s violation is subject to a specific part of state or federal law, it’s a good idea to start with an organization like the Equal Employment Opportunity Commission, Occupational and Safety Hazards Administration, or even your state’s labor offices. In cases in which the employer violates public or even company policy, a private lawsuit is often the only way to settle disputes.
Employment & Labor Law
Employment and labor laws also regulate the work conditions and compensation (Wage and Hour Laws) an employee receives. Both Federal and State Regulations dictate work conditions, hours worked, payment of regular wages and overtime, as well as meal and rest periods and other aspects of compensation.
Generally, non-exempt employees in California are entitled to the following compensation and work conditions:
Overtime:
Employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (11/2) times such employee’s regular rate of pay for all hours worked over 40 hours in the workweek and double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek.
Reporting Time Pay:
Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.
Records Keeping:
Every employer shall keep accurate information with respect to each employee including: (1) Full name, home address, occupation and social security number; (2) Birth date, if under 18 years, and designation as a minor; (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded; (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee; (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request; and (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. The employer shall maintain an accurate production record.
Paystub & Pay Requirement:
Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee’s social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item.
Meal Periods:
No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Also, an employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.
Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.
If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.
Ten (10) Minute Rest Periods:
Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.
Uniforms and Equipment:
When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term “uniform” includes wearing apparel and accessories of distinctive design or color.
NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft.
These are only some of the general provisions often asked about by employers and employees, which do not always apply. For more information visit the Department of Industrial Relations website or contact us for a free consultation regarding your employment.