The employment law practice of Finnegan & Diba has been a cornerstone throughout the firm’s existence. The firm has experience in a wide range of employment matters assisting both employers and employees in transactional matters such as: employment agreements and compensation plans, employee handbooks, separation and severance agreements, and company policies and code of conduct.
Should a matter require litigation, the firm has vigorously and successfully litigated disputes on behalf of both employers and employees in state and federal court, including but not limited to: wage and hour law, wrongful termination, discrimination, harassment, breach of employment contracts, and trade secrets.
The firm recognizes that growing and maintaining a business is hard enough. Our primary focus is to alleviate the employment related issues and let you do what you do best. We guide employers through every stage of the employment process. From hiring to firing, we combine litigation experience with preventative measures to ensure that no matter the issue, you’re covered.
We have extensive experience representing employees in both transactional and litigation matters. California provides some of the most employee friendly laws of which employees simply aren’t aware. The firm is aware of the disparity of bargaining power between employers and employees and is of the mindset that those who provide valuable services to their employer should be compensated accordingly.
Most employees here in California are “at-will” employees, meaning both they and the employer are free to sever the employment relationship at any time and can do so for virtually any reason. However, California draws the line rendering a termination wrongful if the termination violates public policy.
A four-part test was developed to determine whether a particular policy can support a common law wrongful discharge claim. The policy must be:
- Based on either a constitutional or statutory provision (or ethical rules or regulations enacted under statutory authority).
- “Public” in the sense that it “inures to the benefit of the public” rather than merely serving the interests of the individual.
- Substantial and fundamental. [Stevenson v. Sup.Ct. (Huntington Mem. Hosp.) (1997) 16 C4th 880, 894, 66 CR2d 888, 896; City of Moorpark v. Sup.Ct. (Dillon) (1998) 18 C4th 1143, 1159, 77 CR2d 445, 455; Silo v. CHW Med. Found. (2002) 27 C4th 1097, 1104, 119 CR2d 698, 703].
Terminations that violate public policy include, but are not limited to, terminations based on an employee’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person. Finnegan & Diba, ALC understands that addressing these issues can be complex and very fact intensive. If you feel your termination violated public policy or your business is being accused of wrongfully terminating an employee, please contact Finnegan & Diba, ALC for a free consultation and assessment.
California employees are protected against discrimination, retaliation, and harassment by an employer by the California Fair Employment & Housing Act (“FEHA”), found at California Government Code 12940. FEHA applies to public and private employers, labor organizations and employment agencies and makes it illegal for employers of five or more employees to discriminate against job applicants and employees based on their protected category, or retaliate against them because they have asserted their rights under the law. The FEHA prohibits harassment based on a protected category against an employee, an applicant, an unpaid intern or volunteer, or a contractor. Harassment is prohibited in all workplaces, even those with fewer than five employees.
Specifically, the FEHA prohibits employers from making employment related decisions based on the following protected categories: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person. California also provides additional employee protections from retaliation through the California Labor Code.
If you feel you were or are being harassed, subjected to retaliation, and/or discriminated against in compensation or in terms, conditions, or privileges of your employment (including not being hired, employed, selected for a training program leading to employment, or barred or discharged from employment, or from a training program leading to employment) based on any of these characteristics, or you are an employer being accused of discrimination, harassment, or retaliation, please contact Finnegan & Diba, ALC for a free consultation and assessment.
In California, wage and hour laws are really very simple, but many employers often take advantage of their employees’ lack of understanding of these simple guidelines. Wage and hour laws exist to make sure employers treat employees fairly. When an employer breaks a wage or hour law, the employee can suffer loss of income, job termination, and other adverse effects. Matters can get worse for the employee when he or she reports wage and hour infractions. The employee might then face unlawful retaliation and compensation disputes. Finnegan & Diba, ALC represents both employees and employers pertaining to claims for the following violations:
- Failure to provide overtime pay
- Failure to payout vacation pay
- Misclassification of employees as “Exempt Employees”
- Misclassification of employees as “Independent Contractors”
- Working “off-the-clock”
- Failing to provide meal or rest breaks and failing to pay premium wage for the failure
- Forcing employees to be “on-call” without pay
- Minimum wage violations and recovery of Liquidated Damages
- Actions pursuant to the California Labor Code Private Attorneys General Act of 2004
Minimum Wage Summary
Starting January 1, 2019, minimum wage in California is $11.00 per hour for employers with 25 employees or less and $12.00 per hour for employers with 26 or more employees. In 2020, these numbers will increase to $12.00 and $13.00 per hour, respectively. Minimum wage will continue to increase each year until 2023 when minimum wage for all employers regardless of the number of employees will be $15.00 per hour.
California overtime laws make it mandatory for all employers to pay overtime wages of one and one-half times the amount of normal wages for every hour of overtime. “Overtime” refers to any time worked over eight hours per day or more than 40 hours per workweek. There are a few exemptions and exceptions to the general overtime law.
Meal Period Summary
In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, 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 employee only if the first meal period was not waived. There is an exception for employees in the motion picture industry, however, as they may work no longer than six hours without a meal period of not less than 30 minutes, nor more than one hour. And a subsequent meal period must be called not later than six hours after the termination of the preceding meal period. IWC Order 12-2001, Section 11(A).
Rest Period Summary
In California, the Industrial Welfare Commission Wage Orders require that employers must authorize and permit nonexempt employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period. The rest period is based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four-hour work period, or major fraction thereof. The Division of Labor Standards Enforcement (DLSE) considers anything more than two hours to be a “major fraction” of four.” A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. With respect to the taking of rest periods, an exception exists under IWC Order 5-2001, Section 12(C) for certain employees of 24-hour residential care facilities who may have their rest period limited under certain circumstances. There are other exceptions to the general rest period requirement, including but not limited to, for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who shall have additional interim rest periods during periods of actual rehearsal or shooting. IWC Order 12-2001, Section 12 (C).
If you believe that your employer violated federal or California wage and hour laws, then you may be entitled to immediate compensation and any applicable penalties. Whenever possible, it is always recommended that you document the circumstances and attempt to resolve the dispute through your employer’s internal policies and procedures. Please contact Finnegan & Diba, ALC if you believe you may have been deprived of any benefit entitled to you as an employee in California, or if your company is accused of committing wage and hour violations, for a free consultation and assessment.