Unpaid Wages/Overtime

In accordance with the California Labor Code, during employment, employees are entitled to the timely payment of all wages earned, including overtime wages. Failure to pay these earned wages may subject an employer to penalties and interest. Moreover, an employer must pay all wages earned, including accrued vacation pay, at the time of discharging an employee or within 72 hours after an employee quits without notice. An employer who wilfully fails to do so may be required to pay a penalty of up to 30 days wages, plus interest. When calculating this amount, "30 days' wages" does not correlate with one month's pay. Instead, it is calculated by taking a full day's wages, and multiplying that by 30 days.

Generally, employees working over 8 hours per day or over 40 hours per week and the first 8 hours worked on the seventh day of work in one workweek must be compensated at 1 ½ times their hourly rate. Any work in excess of 12 hours per day and any hours worked in excess of 8 on the seventh day of work in one workweek must be compensated at twice their hourly rate. Employers who violate overtime provisions may be subject to substantial penalties, as well as interest.

Failure to adhere to these and other wage-related provisions of the California Labor Code may subject employers to both Labor Board claims and civil lawsuits. If the practice is widespread, it could also subject an employer to a quasi-class action seeking reimbursement of wages owed to all current and former employees similarly affected within the preceding four years, as well as penalties, interest and reimbursement of attorney fees. If you would like to contact the Law Office of Robert D. Coviello to further discuss these legal obligations, please call or Email the Firm.

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Improper Tip-Pooling

In accordance with the California Labor Code, no employer or supervisor may collect, take or receive tips, or any portion of tips, left for its employees by patrons. However, tip-pooling among co-employees without supervisory duties is proper. The issue is the degree of supervisory authority conferred upon the employees participating in the tip-pool. Generally-speaking, it will likely be considered unlawful for an owner, manager or supervisor to participate in the tip-pool. (See Jameson v. Five Feet Restaurant)

Failure to adhere to these and other wage-related provisions of the California Labor Code may subject employers to both Labor Board claims and civil lawsuits. If the practice is widespread, it could also subject an employer to a quasi-class action seeking reimbursement of tips owed to all current and former employees similarly affected within the preceding four years, as well as penalties, interest and reimbursement of attorney fees. If you would like to contact the Law Office of Robert D. Coviello to further discuss these legal obligations, please call or Email the Firm.

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Exempt vs. Nonexempt

The misclassification of exempt employees is a frequent problem these days. For instance, some salaried employees who are classified as "managers" are improperly classified as exempt. To be properly classified as exempt, a "manager" must generally be paid a salary equivalent to at least twice the minimum wage, have specified customary supervisory authority over two or more employees, customarily exercise independent discretion and spend more than 50% of the time performing managerial duties. Improperly classified employees may be entitled to overtime compensation and may recover such unpaid overtime wages for the last 3-4 years.

If an employer has misclassified its employees and the practice is widespread, it could be subject to a quasi-class action seeking restitution for the nonpayment of overtime wages, interest and reimbursement of attorney fees on behalf of all current and former misclassified employees within the preceding four years. If you would like to contact the Law Office of Robert D. Coviello to further discuss these legal obligations, please call or Email the Firm.

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Wrongful Termination

California permits the termination of employment, having no specified term, without cause or prior notice. In other words, an employee can quit his/her job, and an employer can terminate an employee, at any time, with or without cause or notice. This is called at-will employment.

However, some employers engage in conduct that tends to override the presumption of at-will employment, such as making contrary representations during the hiring process or during employment. For example, comments such as, "You will become a permanent employee after the introductory period," "As long as you perform well, you will have a job here," "We're looking for long-term employees," and the like, may begin to tear away at an employee's at-will status. Should this be the case and that employee is terminated without cause, an employee may have a claim for wrongful termination.

Wrongful termination may also be alleged when an employee has engaged in certain legally-protected conduct. For instance, an employee may not be terminated because he/she has complained of sexual harassment. There is a variety of other scenarios in which an employee becomes legally "protected" from termination by engaging in certain legally-protected conduct. If you would like to contact the Law Office of Robert D. Coviello to further discuss these legal parameters, please call or Email the Firm.

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Sexual Harassment

There are two theories of liability under a sexual harassment claim: (1) Quid Pro Quo; and (2) Hostile Work Environment. Quid Pro Quo sexual harassment can be established when employment, continued employment or employment benefits are specifically conditioned upon submission to unwelcome sexual advances. Hostile Work Environment sexual harassment occurs when an employee is subjected to unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature which is sufficiently severe or pervasive to alter the conditions of the work environment so as to create an environment that is abusive and hostile, as a matter of law.

In addition to the above, whether a sexual harassment allegation is legally viable against the employer largely depends upon the title of the person(s) committing the harassment, the notice given to managerial employees of the harassment, the employment policies of the employer, any action, or lack of action, taken by the employer after receiving a complaint of sexual harassment and whether a proper investigation took place. (Please refer to our Internal Investigations section.)

Employers who fail to properly address such complaints may expose themselves to significant liability down the road should the affected employee file a lawsuit. If you would like to contact the Law Office of Robert D. Coviello to further discuss these legal parameters, please call or Email the Firm.

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Discrimination/Harassment

California law requires employers to maintain a work environment free of harassing and/or discriminating conduct which is committed on account of an employee's race, religion, color, national origin, ancestry, disability, medical condition, marital status, sex, age, pregnancy or sexual orientation. Upon having reasonable knowledge that this particular type of harassment or discrimination is occurring, an employer is absolutely required to take reasonable steps to protect its employees from further similar conduct. California specifically mandates immediate and appropriate corrective and investigative action by employers. Not only must employers stop the unlawful conduct, but must also launch immediate investigations into the allegations raised. (Please refer to our Internal Investigations section.)

Employers who fail to do so may expose themselves to significant liability down the road should the affected employee file a lawsuit. If you would like to contact the Law Office of Robert D. Coviello to further discuss these legal obligations, please call or Email the Firm.

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Whistleblowing/Retaliation

As indicated elsewhere on our website, California employees having no specified term of employment may indeed be terminated with or without cause or prior notice. This is called at-will employment. However, if an employee, at-will or otherwise, is terminated for "blowing the whistle" on an employer's violation of a legally-recognized public policy, a claim for Retaliation may arise.

For example, a California employee who discloses information to a government or law enforcement agency where that employee has reasonable cause to believe that the information discloses a violation of a state or federal statute or regulation by the employer, may not be terminated for doing so and may not be prevented from making the disclosure by the employer.

There are various scenarios under which an employee may receive legal protection from retaliation or termination due to a disclosure of a violation of a state or federal statute or regulation. For more information on these protected activities, please call or Email the Firm.

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Medical Leaves/Disability

There are different types of unpaid medical leaves that may be taken as a matter of law in California, such as pregnancy leave, family and medical leave, and others. The law applicable to leaves is relatively expansive and involves an analysis of each employee's particular circumstance.

For instance, in order to determine the length of pregnancy leave to which an employee is entitled in California, the law looks to whether the employee has suffered any pregnancy-related medical conditions or complications. As an another example, in order to determine whether an employee is entitled to take a family or medical leave, the law generally considers the following factors: the length of the employee's employment, the number of hours worked, the number of employees at the place of employment, the nature of the health condition for which the leave is required, and whether the health condition pertains to the employee or an employee's spouse, child or parent, among other things.

Generally-speaking, if an employee requires an accommodation for a disability, the accommodation must be reasonable and the employee must be able to perform the essential functions of his/her job, with or without the accommodation. However, a primary factor in this analysis is whether the disability is a legally-recognized disability which is known to the employer. Employees with physical or mental impairments which limit their ability to perform a major life activity tend to qualify for accommodation in California. In such cases, reasonable accommodations must be afforded, unless it would cause undue hardship upon the employer.

It is important to note that the law in this area is quite complex and, therefore, not every condition qualifies for legal protection or for a permitted leave. For more detailed information on this topic, please call or Email the Firm.

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Employment Contracts

The language included in an employment contract will have a profound effect upon an employee's terms and conditions of employment, discipline and termination, among other material things. Often times, the language in an employment contract is sufficiently vague or ambiguous to be subject to more than one reasonable legal interpretation, which may ultimately lead to a legal dispute. Employees and employers alike are well-advised to have all employment contracts reviewed by experienced counsel prior to execution. The same applies to Releases or Settlement Agreements drafted upon termination of employment.

An issue that frequently arises is whether an employee is legally subject to termination in light of language included in an operative employment contract. If the employer is unable to conform to the employment contract in instituting discipline or termination, a claim for breach of employment contract against the employer may be viable.

If you would like the Law Office of Robert D. Coviello to assist you in assessing an employment contract or a breach thereof, please call or Email the Firm.

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Severance Pay

Severance pay is not required in California, regardless of the length of employment or the employee's position. However, some employers contractually bargain for severance pay in employment contracts. Other employers may bind themselves to the payment of severance pay as a result of their employment practices and policies. If you believe you are improperly being denied severance pay on one of these basis, we may be able to assist you in obtaining employer compliance in this regard. Please call or Email the Firm.

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Employee Handbooks

California employers should maintain properly drafted written workplace policies. In fact, there are certain written policies which are either required to be maintained and/or which will serve to highly benefit the employer if they are indeed maintained. Having appropriate written policies in effect may relieve employers from substantial liability in employee lawsuits.

A written policy against unlawful discrimination and harassment in the workplace is one such policy. However, the policy must be adequately drafted and must provide employees with a proper complaint and investigative procedure. There are other policies which employers are well-advised to incorporate, such as a properly drafted at-will employment policy, among other things.

Often times, employee handbooks are simply too voluminous and serve to unnecessarily create contractual obligations upon employers that would not have otherwise existed, resulting in a vast limitation upon employer discretion. As a result, in many circumstances, "less" is indeed "more" when taking into consideration which policies an employer should implement in writing.

In light of this, employers are strongly encouraged to have experienced counsel develop appropriate policies and/or review existing policies for legal debilities. If you would like the Law Office of Robert D. Coviello to assist you in this regard, please call or Email the Firm.

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Internal Investigations

In many circumstances, employers should consider retaining experienced counsel to conduct internal investigations of employee complaints. This is particularly so when an employer receives an internal complaint pertaining to alleged sexual harassment or other unlawful harassment or discrimination in the workplace. This is likewise the case when an employer receives a complaint lodged with the Department of Fair Employment & Housing, Equal Employment Opportunity Commission or the Labor Board by one or more of its current or former employees.

California specifically requires immediate and appropriate corrective and investigative action by employers once the employer receives a complaint of sexual harassment or other unlawful harassment or discrimination, or once the employer has reasonable cause to believe that such conduct may be occurring in the workplace. Not only must employers stop unlawful conduct, but must launch immediate neutral investigations into allegations raised. Employers who fail to do so may expose themselves to significant liability down the road should the affected employee file a lawsuit.

The amount of Punitive Damages available to the employee in a lawsuit largely depends upon whether the employer had actual or constructive notice of the unlawful conduct, as well as, upon the appropriateness of the employer's actions in preventing and investigating it. As such, employers must make every effort to conduct non-partial and neutral investigations into employee allegations, including conducting and documenting proper interviews of the complainant, the accused and all known or possible witnesses.

Quite often, it is difficult for employers to meet these legal requirements in an internal investigation --particularly when the accused is a high-level managerial employee, or when the employer lacks an adequate Human Resources department with the proper training. Because an employer's conduct will be highly scrutinized after a lawsuit has been filed, many employers elect to retain an outside neutral investigator to conduct the requisite investigation. Employers are well-advised to consider this option.

If you would like the Law Office of Robert D. Coviello to conduct an internal investigation, please call or Email the Firm. For a summary of the many types of investigations conducted and outcomes obtained by this firm, please refer to our Verdicts & Settlements section.

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Unfair Business Practices

As indicated at various times throughout this website, in certain cases, the opportunity for filing a "quasi-class action" or representative claim against an employer is available. This opportunity arises particularly when the employer has seemingly committed a violation of the California Labor Code that affects a group of employees. In such cases, a lawsuit may be filed by one affected employee on behalf of all other similarly situated employees, past or present, within the preceding four years whom were or continue to be likewise affected by the violation. In such cases, restitution of monies owed, including interest, penalties and attorney fees, may be sought on behalf of the entire representative class in one lawsuit.

For further information on this type of claim, please call or Email the Firm.

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Labor Board Claims

The Law Office of Robert D. Coviello can assist both employees and employers in asserting or defending against Labor Board claims from their administrative inception through judicial appeal. We may also represent clients, on an as needed basis, during preliminary hearings, hearings on the merits of the Labor Board claim, and appellate hearings in court.

If you would like the Law Office of Robert D. Coviello to assist you in this regard, please call or Email the Firm.

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DFEH/EEOC Claims

The Law Office of Robert D. Coviello can assist employers in defending against claims filed with the Department of Fair Employment & Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC). Retaining experienced counsel early on to respond to a claim filed with the DFEH or the EEOC may result in an early dismissal of the claim. Often times, the information and documents requested may be objectionable.

If you would like the Law Office of Robert D. Coviello to handle a DFEH or EEOC administrative complaint filed against you by a current or former employee, please call or Email the Firm. For a summary of some of the outcomes obtained by this firm in this regard, please refer to our Verdicts & Settlements section.

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