Hoyer, Hicks & Gage
California Employment Lawyers
Advocating for employees and small businesses since 1993.
The attorneys of Hoyer, Hicks & Gage represent clients regarding a variety of labor and employment matters, including wrongful termination, discrimination, harassment, missed breaks, and unpaid wages.
We have expertise litigating individual and class action cases in the state and federal courts of the San Francisco Bay Area and greater northern California area. We also have expertise in negotiating pre-litigation resolutions. We are committed to making a difference in the lives of our clients, who are typically individual employees or small businesses.
Practice Areas
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California has wrongful termination laws that prohibit firing an employee when it would violate public policy. Typically, that means firing someone based on a legally protected category, or for reporting or refusing to participate in an illegal activity or public safety issue to a manager or government official. There are a multitude of reasons why an employer could violate the wrongful termination laws.
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Whistleblower retaliation is more common than many people realize. Many supervisors view reporting dangerous or illegal activities as disloyal and will demote or fire the reporting employee. Being a whistleblower is not an easy decision. There is sacrifice and risk that comes with it. That's why when you blow the whistle you want to know that you will be protected against retaliation.
There are federal and state laws, such as the Whistleblower Protection Act, which provide protection from whistleblower retaliation and give you the right to file a claim or lawsuit to enforce your rights.
Whistleblower retaliation occurs when you are discharged, demoted, suspended, threatened, intimidated, harassed, or subjected to a hostile work environment after engaging in a protected whistleblower activity.
Termination and Retaliation
Discrimination and Harassment
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Anyone over 40 can be the subject of bias against older workers. Typically managers will discriminate against more senior employees based on false stereotypes that they are less efficient or less able to adapt to change. Building a successful age discrimination case usually requires demonstrating that those stereotypes played a significant role in a termination decision.
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California has the strongest protections for disabled workers in the United States. An employee's disability, whether temporary or permanent, cannot be a motivating factor in a termination decision. If an employee can do the job with a reasonable modification of the job duties or conditions, the employer is required to grant that accommodation. If an employee requires a medical leave, his or her job and benefits are entitled to significant protections.
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The Bay Area is home to every different type of race and nationality. Unfortunately, some managers still operate based on subtle or not-so-subtle stereotypes. Showing bias in this type of case usually involves closely examining a manager's comments and thoughts about various employees.
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Sexual harassment may consist of an employer or supervisor making sexual advances toward an employee in exchange for some benefit. Additionally, sexual harassment may also consist of intimidation, ridicule, taunting, groping, and grabbing of an employee by a supervisor or co-worker resulting in a hostile work environment. An employer is liable for the sexual harassment committed by a co-worker if the supervisor knew or should have known of the harassment and failed to take immediate corrective action. However, an employer is considered to be strictly liable, or liable without finding fault, if the harassment is committed by a supervisor.
Furthermore, sexual characteristics such as pregnancy and child care responsibilities are protected from use in employment decisions. Building a successful discrimination case in this area typically relies on showing that comments made by a discriminating manager are biased or that the manager treated employees differently in pay and assignments.
Wage and Hour
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In California, overtime laws prohibit employers from employing an individual for more than eight hours per workday and for more than forty hours per workweek without paying the employee overtime rates. Overtime laws also require an employer to pay an overtime rate of one and a half times an employee’s regular hourly pay rate if they work more than eight hours and up to twelve hours in a single workday. Overtime laws further require an employer to pay an overtime rate of double an employee’s regular hourly pay rate if they work more than twelve hours in a single workday
Some common tricks that employers use to avoid paying overtime and doubletime pay are to misclassify employees as exempt managers or administrators, or require employees to work off the clock.
If an employer violates overtime laws refuses to pay overtime wages, an employee is entitled to recover the lost wages by filing a lawsuit against the employer for backpay and interest.
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Most jobs are governed by the California Labor Code and federal Fair Labor Standards Act. Under these laws, employees are considered either "exempt" or "non-exempt." Employees that are non-exempt are entitled to overtime pay and meal and rest periods, while employees who are exempt are not.
Exempt employees are typically supervisors, managers, executives, "outside" salesmen, licensed professionals, administrators, or other high-level workers whose work requires discretion and independent judgment. In addition to performing duties in one of these categories, in order to be exempt, you must make about $30,000 per year. If you do not fit into any of these categories, you are likely non-exempt and therefore eligible for overtime pay and meal and rest breaks.
A common misconception is that, if you are paid on a salary basis, then you are exempt. That is not true. Many workers who are paid on a salary basis do not perform the kind of high-level job duties that meet the exemptions specified in the California Labor Code and the federal Fair Labor Standards Act.
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California requires all employees be paid at least $16.50 for every hour worked. Employers sometimes try to evade their duties by not paying for travel time or preparation time. Another trick is to pay a flat rate for a particular job that results in less than minimum wage.
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In California, most employees are entitled to a ten minute rest break for the first three-and-a-half hours and an additional rest break for each four hour period more than six total hours. Some employers say they allow rest breaks, but in practice they make it impossible for employees to take them.
Most employees are also entitled to a 30 minute meal break, uninterrupted and completely free of control, on shifts of more than five-and-a-half hours. A shift of more than 10 hours gives employees the right to a second off-duty meal break.
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Misclassification of employees as independent contractors is a serious problem for many workers. As a result, they are deprived unlawfully of overtime and minimum wages as well as benefits. Under the "ABC Test" established by the California Supreme Court in Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, a worker is an employee if any of the following conditions are met:
(A) The hiring entity controls or directs the performance of the worker;
(B) The worker performs work associated with the hiring entity's business (like a driver who drives for a trucking company or a programmer who codes for a software company, not a plumber whose work is entirely unrelated to the hiring entity's business); or
(C) The worker is not customarily engaged in an independently established business.
The attorneys at Hoyer, Hicks & Gage have decades of experience dealing with these types of cases. Contact us today for your free consultation.
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