Usually employees will only contact an employment law attorney after an employment crisis has occurred, such as getting fired. However, there are several things that employees can do to protect themselves before an employment crisis. Here are five tips for employees who are still employed:

Don’t Work Without Getting Paid.

It seems obvious, but many good natured and trusting employees continue to work for employers who are late in paying regular paychecks, who issue bounced checks, or who outright refuse to pay their employees. Employers who issue bad checks or who fail to pay wages can be sued for penalties that greatly exceed the amount of the actual wages.

The problem for employees is that an employer’s failure to pay timely wages is often indicative of major financial problems, like a looming bankruptcy. Employees who continue to work for employers without pay risk collecting nothing from their employer even if they successfully sue their employer for owed wages and penalties.

2. Stay in Contact With Former Employees

Co-workers are almost always used as witnesses in wrongful termination lawsuits. Unfortunately, current employees are usually unfavorable or “hostile” witnesses for plaintiff employees. This is because current employee witnesses still collect a paycheck from the business that’s getting sued, are scared of retaliation, and do not want to cause problems for themselves at work.

However, former employees are typically very good witnesses for plaintiff employees. This is because former employees no longer have a sense of loyalty to the employer and can speak with more candor with greater credibility.

For this reason, it is a good practice to stay in contact with respected former employees.

3. Respond to Serious Poor Performance Allegations In Writing

Employees who are wrongfully or unfairly accused of serious performance problems should respond in writing in a timely, calm, succinct, and professional manner, and preferably by email. The writing should clearly explain why the employee is not at fault. To illustrate, take the following case of Mike, a corndog cook at Hot Dog On A Stick in Capitola.

Mike is responsible for draining and re-filling the restaurant’s deep fryer when directed by his immediate supervisor, Jared. Five minutes before closing, Jared tells Mike to drain and refill the deep fryer. Unfortunately, the store closes before Mike can complete the draining and refilling process. The next day, the store is late in serving corn dogs because Mike needed to finish refilling the deep fryer. Jared is furious and issues Mike a written warning for insubordination. In the blank “Employee Response” section of the written warning, Mike writes:

“Five minutes before closing yesterday, Jared told me to change the fryer oil. This is a 45 minute process. Before I could finish, my shift was over and the store closed. I completed the process when my shift started the next day. I was not insubordinate.”

Mike’s timely, calm, succinct, and professional note can now serve as favorable evidence one, two, or even five years later in the event of a wrongful termination lawsuit. Just as employers document employee performance problems, employees must create a paper trail of their own.

4. Request Your Personnel File and Keep Copies of Employment Records

Current and former employees are entitled by law to inspect and copy their personnel file which should contain important employment records. When appropriate, employees should ask to review their personnel file if they suspect false or defamatory statements have been made about their job performance.

Similarly, employees should keep copies of their paystubs and important personnel records, such as awards, letters of recommendation, notes of customer appreciation and any other document that shows they are performing their job well. Employees should not rely on employers to include positive records in their personnel file.

5. Contact an Employment Law Attorney Before A Crisis Occurs

Employment law is one of the most complex and aggressively litigated areas of California law. It is almost always in the employee’s interest to contact an employment law attorney before an employment crisis if the employee is experiencing harassment, discrimination, retaliation, or is not getting paid their wages or is not provided with rest and meal breaks.

Are you a Monterey, Salinas, Watsonville or Santa Cruz employee facing an employment scris? Ready to stand up for your rights? Contact the Law Office of Brian Mathias.

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