Employment law is full of surprises. Here are five employment law surprises, myths, and misconceptions:
- Two Weeks’ Notice Is Not Legally Required
Giving two weeks' notice to your employer before you quit is not legally required. On the contrary, employment in California is presumed to be “at-will”. Employment is “at will” if it has no specified term. It may be terminated “at the will” of either party, meaning any time. Inversely employers can terminate employees whenever they like, so long it is not for an illegal reason.
The major exception is if the employee is employed for a contracted length of time, for example for one year. In this case, the employment could not be terminated “at-will” by either party. However, most employees do not have written employment contracts.
2. It’s An “At-Will” State. I can fire you for whatever reason I want.
Employment in California is presumed to be at-will, true. But with a big exception. Employees may not be terminated for an illegal reason. There are dozens of California and federal employment laws that prohibit termination of employment, even in an at-will context.
For example, employment may not be terminated because of a "protected characteristic". This includes terminations based on age (if over 40), ancestry, color, disability or “health” discrimination, gender, gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation. Other policies prohibit retaliation against whistle blowers (employees who have reported illegal acts).
At-will is not carte blanche.
3. If I pay you a salary you don’t get overtime.
Employers, and even human resource managers, very frequently believe that if an employee is paid on a salaried basis, rather than an hourly basis, the employee is not entitled to overtime pay. This is not the case at all.
There are two classifications of California employees, “exempt” employees and “non-exempt” employees. Non-exempt employees are entitled to 1.5 times their hourly rate for any hours worked longer than 8 per day or 40 per week, meal breaks, rest breaks, and other protections. Exempt employees are not.
Employers and employees cannot simply agree on a classification. Rather, it is determined by looking at a complicated, multi-factor test. Each factor of the test needs to be satisfied before an employer can claim an employee is not entitled to overtime. Only one of the factors is whether the employee is paid on a salaried basis rather than an hourly basis. The most important and overlooked factor is whether or not the employee applies discretion and independent judgment on matters of significance. In simple terms, is the employee a grunt-level laborer or high level company decision maker? Read more here.
4. I was terminated without cause!
Employees often believe that if they are terminated “without cause” that they can sue their former employer. This is not the case.
Employers are not legally required to have a cause to terminate the vast majority of employees. Employers may legally terminate employees without cause, for arbitrary and unfair cause, or even out of a mistaken cause that the employee performed poorly. Without more, the failure to terminate “for cause” does not give the employee the ability to sue their employer.
What employers cannot do is terminate employees for an unlawful reason. For example, employers cannot terminate an employee because of the employee’s health condition, injury, or illness if the employee can still perform the essential functions of their job; called “disability discrimination”. Employers will often claim that an employee was fired “for cause” to disguise an otherwise illegal termination, called a “pretextual termination.” Read more about wrongful terminations here.
5. I have a hostile work environment!
The term “hostile work environment” is not a myth. It’s a common type of employment lawsuit. However, the legal definition of a “hostile work environment” is much narrower than what most employees expect.
A hostile work environment is a form of harassment in employment. However, harassment is only illegal in California if the plaintiff-employee is subjected to it because of a legally protected characteristic. Legally protected characteristics include age (if over 40), ancestry, color, disability or “health” status, gender (including pregnancy and “sexual harassment”), gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation.
Employees do not have an illegal “hostile work environment” simply because they are overworked, are set up to fail by a rival supervisor, or because of an aggressive, mean, and vindictive working environment. The harassment must be directed at the employee because of a protected characteristic. Read about a hypothetical harassment case here.
Are you a Santa Cruz, Capitola, Scotts Valley, or Watsonville employee who wants to clarify an employment law myth? Visit BrianMathiasLaw.com