Employee rights

Articles by Carina Castañeda 22 February 2010

The Law Offices of Carina Castaneda welcomes Attorney Christina Djernaes in its employment practice.  Atty. Djernaes has successfully worked on class actions obtaining $22 million in settlements in overtime cases. She is an expert in wrongful termination, discrimination and wage and hour recover including, but not limited to, overtime and bonuses or commissions.

1. What is at-will employment?

Unless there is an agreement to the contrary, employees in California are employed "at will." The employment-at-will doctrine says that both the employer and the employee may end the employment relationship at any time without notice or reason. This means your employer has the right to terminate your employment at any time, for any reason, or for no reason at all or for a bad reason, so long as the reason is not illegal--even if you performance has been outstanding. In other words, an employee is not guaranteed continued employment even if he or she is doing a good job.

The other side of the "at-will" coin is that you, as an employee, can quit your job for any reason at any time. You cannot be forced to work for an employer. You don't have to give your employer a reason for quitting.

There are, however, certain exceptions to this general rule. These exceptions make up the law of unlawful or wrongful termination.

2. What is wrongful termination?

In California, most employees are employed "at will." That means that an employer does not need to have a good reason to terminate an employee; similarly, an employer who has what seems to be a bad or an unfair reason or a reason that is not accurate, is not liable for wrongful termination. Wrongful termination focuses on an employer’s motivation for the termination.

It is wrongful termination for an employer to terminate an employee because of discrimination; that is, an employee’s pregnancy, family responsibilities, gender, race, religion, national origin, disability, medical condition, age, or marital status. It is also wrongful termination for an employer to retaliate against an employee who is making complaints about an employer’s violations of law or is refusing to participate in unlawful activity. It is also wrongful termination to terminate an employee for medical leave or jury time. Finally, it is a wrongful termination if an employer violates an express or implied, oral or written contract not to terminate an employee under those conditions.

3. Can I recover unpaid commissions?

California law requires employees be paid all commissions they've earned.

Sales commissions as discussed here is money paid to an employee upon completion of a task, usually selling a certain amount of goods or services. Employers sometimes use sales commissions as incentives to increase worker productivity. A commission may be paid in addition to a salary or instead of a salary.

If you had an agreement with your employer to pay you a commission and are now not getting paid, you may be able to recover the commission: You may have a contractual right to receive the commissions that you earned.

First, you must be certain that you had a clear agreement with your employer about the commission pay--including the rate of the commission. If you did, and notifying your employer that you are not receiving your promised commissions does not resolve the case, you can seek the commissions through the DLSE or seek an attorney to assist you.

4. Who is entitled to overtime wages?

California law requires employees to get paid time and one-half for all hours worked in excess of 8 in one day or 40 hours in one week, unless they are "exempt" from the requirements to pay overtime. In order to be "exempt" from the requirements to pay overtime, an employee must be employed in a administrative, executive, or professional function and spend over 50 percent of his or her working hours exercising discretion and independent judgment or supervising other employees. Just because an employee has a managerial sounding title or is paid a salary, does not mean that person is not entitled to overtime pay.

5. What can I do if my employer refuses to pay me the bonus I was promised?

Bonuses are generally considered discretionary or non-discretionary. The Fair Labor Standards Act does not require the payment of bonuses, so employees cannot enforce their right to receive a commission by going to the federal agency that enforces the FLSA or going to court under the FLSA. However, that does not mean you are completely out of luck if you did not receive the bonus that you were promised. You may have a contractual right to receive the bonuses that you earned.

First, you must be certain that you had a clear agreement with your employer about the bonus pay. If notifying your employer that you are not receiving your promised bonuses does not resolve your matter, you can seek the bonus through the DLSE or seek an attorney to assist you.


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