Retaliation is a type of practice that is deemed unlawful under employment laws.  An employee may experience retaliation when he or she makes a complaint about sexual harassment, discrimination, or some kind of illegal activity.  The way an employer may exercise retaliatory behavior is by punishing an employee for making the complaint.   Punishing an employee for making a complaint may be expressed through demotion, reduced pay, reduced work hours, removal from the work schedule, denial of employment benefits, reprimanding the employee for fictitious reasons, and termination.  Again, to retaliate against an employee after he or she makes a complaint, may result in legal proceedings being brought against the employer. If an employee does feel as though they have been retaliated against after making a complaint, he or she should contact a retaliation lawyer to discuss their potential claim against their employer. Below are a few situations where an employee may find themselves retaliated against.

1. You make a complaint about sexual harassment.

Although it is considered unlawful behavior, sexual harassment is the most common form of harassment in the workplace.  Sexual harassment can be exercised through comments, visuals, rumors, or physical contact.  According to the law, an employee has the right to report sexual harassment without any repercussions.  This means that an employee’s position at work is protected in the event that he or she makes a formal complaint regarding sexual harassment. For example, Nina worked for an advertising company.  Recently a new director was hired to oversee her department named Larry.  Soon after Larry was hired, he gave extra attention to Nina; attention that Nina did not welcome.  Often Larry would make comments about Nina’s breasts to other male employee’s, making jokes that Nina’s breasts were bigger than her brains.  Nina was afraid of Larry as he had cornered her in the copy room a few times and asked her if she would ever consider dating anyone in her department.  Most recently, Nina had asked if she could apply for a promotion and in reply, Larry asked “what do I get?” and winked.  Fed up and overwhelmed, Nina made a formal complaint to the head supervisor of the company.  A few days after Nina made the complaint, she was demoted and moved to a smaller office but still remained under the supervision of Larry and his tormenting.  Nina sent several emails to the head supervisor complaining of the continued harassment but each one went unanswered, Two weeks later Nina was let go from her job without reason.  Here, Nina may have been a victim of sexual harassment but was also then made a victim if retaliation after she spoke up.  The timeline follows that after Nina complained, she was demoted, placed in a smaller office and then let go.  These actions can all be construed as punishment for making the complaint about Larry sexually harassing her on multiple occasions. If Nina were to take her situation to an Employment Lawyer, she may have a claim against her former employer for sexual harassment, retaliation, and wrongful termination.

If an employee feels as though he or she is being sexually harassed he or she should make a formal complaint which entails details of who was the harasser, what occurred, when it took place, and list any witnesses.  It is required by law that employers have an anti-sexual harassment policy in place, so after an employee makes a complaint, there should be steps in place within the policy that should be followed.  An employee can make a complaint to a manager, supervisor, or Human Resources Department.  The complaint does not even need to be made to that particular employee’s direct supervisor or manager, it just needs to be made so that the next step in the policy can begin which is usually that all managers or supervisors are taking the formal complaint to their supervisor or directly to the Human Resources Department.

2. You take or request a leave of absence

Employees have the right under certain employment laws to take a leave of absence for particular reasons.  Some of those reasons may include a medical leave, disability leave, or a leave to care for an ill family member or for incidences regarding pregnancy.  If an employee requests to take an approved leave or actually takes an approved leave, an employer does not legally have the right to punish that employee for taking the leave.  For example, in some circumstances, an employer must reinstate an employee their job upon their return from their leave.  An employer who fires an employee or lets an employee go after he or she takes a leave or requests for a leave may be found liable for retaliation. An employee who takes a leave or requests a leave of absence and feels that they have been retaliated against for that very reason should call an Employment Lawyer.

3. You make a complaint about discrimination

There are employment laws which prohibit discrimination. Discrimination against an employee based on their age, race, religion, sexual orientation, creed, gender, sex, marital status, military status, veteran status, disability, medical condition, or pregnancy is prohibited by law.  Depending on the specific circumstances, if an employee were to complain about being discriminated against and they were treated adversely thereafter, he or she may have a claim in retaliation. An employee who was discriminated against and terminated for complaining about being discriminated against should call an Employment Lawyer.

4. You report something illegal

There are laws in place that protect certain employees who report illegal activity in the workplace. These types of employees who report such things as unsafe work conditions are called whistleblowers.  If a whistleblower reports illegal activity such as poor work conditions and is then fired, he or she may have a retaliation claim against their former employer.  A whistleblower who was terminated should call an Employment Lawyer to discuss their potential retaliation claim as well as wrongful termination.

Employees should not tolerate any kind of retaliation and should contact a wrongful termination attorney who offers free consultations.

Rather than asking a question about disability discrimination and ‘if’ an individual is disabled, the laws that regulate disability discrimination attempts to measure ‘how much’ a person is impaired by their disability.  Arguably, it can be a tad degrading when you feel like you are being asked, ‘exactly how disabled are you’ or ‘how incapable are you’.  Aside from the issues of political incorrectness within those statements (a discussion for some other time), it is counterintuitive to have to prove you actually have limitations while also maintaining that you deserve an equal shot at belonging in the workplace.  Nonetheless, in order to gauge whether someone is protected from disability discrimination in the workplace, the law does draw certain distinctions as to the degree of limitation a person has due to their disability as well as what kind of activities the individual is limited to by the particular disability. There are more things employees need to know about disability discrimination because by looking at the way in which an individual is restricted and the degree of that restriction, the law sets out boundaries on how an employer is to approach the hiring process of a person with a disability as well as how to accommodate current employees with a disability.  Employers need to be aware of the individual’s needs and have a responsibility to reasonably accommodate those needs.

1.  To what extent are you limited by your impairment?

The Americans with Disabilities Act looks to the diminishment of the physical and/or mental capabilities of an employee or applicant to determine whether there is, in fact, a disability.  Broadly speaking, certain employment laws may require that an employee or person applying for a job demonstrate how their impairment restricts a “major life activity”.  This demonstration must indicate that not only is their ability to perform a major life activity restricted but that it is significantly restricted.  In other words, the individual’s inability to do something due to their disability must be severe rather than merely impeding or hindering their ability. 

Keep in mind that the employee or applicant can prove that he or she is in fact significantly limited by performing a single major life activity without having to show that it impacts other major life activities. This is not necessary to prove that the individual’s impairment is a disability.

2.  Reasonable accommodations

The law recognizes the refusal of providing reasonable accommodation can be considered as disability discrimination. Refusing to provide adjustments to an employee is a means of measuring disability discrimination.

Note that an employer is likely obligated to provide reasonable accommodation to the individual even if the disability was incurred at work or outside of work.  For example, if a restaurant employee hurt their wrist while lifting chairs and tables during their shift, an employer may still be expected to provide adjustments to the injured employee’s duties at work.  An example of an adjustment for this particular employee would be perhaps to allow the injured employee to temporarily work at the register, or wipe down tables instead of lifting and stacking tables and chairs at the end of their shift.  In contrast, if an employee was injured in a car accident while on a family vacation, the individual may still have a right to have certain accommodations provided to them based on their disability incurred from the car accident. 

Whether the employee’s disability happened at work or occurred outside of work, the employer would need to address the employee’s particular needs in their current state of impairment.  Again, the employer would need to address requests for accommodation that are within reason.  This means that the employer may not be obligated to provide adjustments for an employee that may bestow unreasonable costs on the employer such as modifying the physical workspace or hiring additional support staff to help the employee. 

3.  Case-by-case basis

Whether or not a particular person, current employee or a potential hire, has a disability is determined on a case-by-case basis.  This application of the law demonstrates the existing flexibility in disability discrimination law.  Specifically, just because a person has been diagnosed with a particular illness, injury, disease, and/or disorder does not automatically render a person “disabled”.  For example, Rick applied for a position to work as a crane operator for a construction company.  For this particular position, each applicant was required to undergo a physical examination for safety reasons.  A report from Rick’s General Practitioner noted that he experienced mild episodes of epilepsy as a child.  When Rick’s application was reviewed by the construction company, management, as well as Human Resources, declared Rick’s application was not “valid” and therefore was not a desirable candidate for the position due to his history of mild epilepsy.  Rick contacted an employment lawyer to ask some questions about disability discrimination and discuss whether he had a disability discrimination case against the construction company for denying him employment due to his previous disability. Here, a court would possibly need to review the facts of Rick’s individual disability discrimination claim to decide if he was ‘disabled’ based on his actual impairment rather than the actual word used to identify his diagnosis, “mild epilepsy”. 

Final thoughts…

As stated previously, it seems degrading for a person with a physical disability to have to prove just how limited he or she is by their disability.  And again, it seems even more illogical to have to prove just how limited you are while simultaneously attempting to demonstrate that you are capable to perform within the position.  However, in looking at the law in detail and context, it seems that in one aspect the laws are constructed this way in order to operate as safeguards for employers.  Going back to the employer’s obligation to provide reasonable accommodation, it makes sense to apply the law on a case-by-case basis in the measurement of what is considered as a ‘disability’.  This also can be seen as beneficial to employees or applicants who are majorly impaired and are in dire need of accommodation in that those particular individuals will be differentiated from mild cases of need.  Overall, for both employees and employers, the flexibility of this area of law has a way of leveling the playing field for both parties.   

In California, sexual harassment laws are part of the Fair Employment and Housing Act (“FEHA”) which is enforced by the California Department of Fair Employment and Housing (“DFEH”). Sexual harassment as defined by FEHA includes not only verbal harassment (e.g., epithets, derogatory comments or slurs) and physical harassment (e.g., assault or physical interference with movement or work), but also includes visual harassment (e.g., derogatory cartoons, drawings or posters). Sexual harassment is no longer limited to just between individuals of opposite sexes but also applies to same-sex harassment because FEHA considers unwelcome sexual advances of an employer toward an employee of the same sex and harassment as unlawful sexual harassment. Additionally, under FEHA, unlawful harassment on the basis of gender identity or gender expression is also prohibited. “Sex” as defined by FEHA does not exclusively refer to just male or female but also includes pregnancy, childbirth, breast-feeding and related medical conditions.

Extensive sexual favoritism has been held by the California Supreme Court as constituting unlawful sexual harassment. In the case of Miller v. California Department of Corrections, two female employees at a prison claimed that the warden engaged in sexual affairs with several female employees and that those female employees received promotions, favorable assignments and other rewards. The two females sued for sexual harassment and retaliation under FEHA. Their claims were rejected by the trial court because the same disadvantages were experienced by all employees, male or female, who were not sexually involved with the warden. Moreover, the warden did not engage in improper sexual conduct toward either of the complaining employees. On appeal, the Supreme Court disagreed with the trial court. It held that “extensive sexual favoritism in a workplace can create a hostile work environment in which female employees can reasonably conclude that management views them as “sexual playthings” or that women must engage in sexual conduct with their supervisors to receive favorable treatment.” Based on this opinion, employees suffering from disadvantages in the workplace because of other romantic relationships and favoritism occurring between supervisors and other employees may have a claim for sexual harassment themselves. Additionally, if they complain about the favoritism and get terminated, demoted, threatened with reprisal, or not chosen for promotion as a result of the complaint(s), they may also have a claim of retaliation.

A California Court of Appeal in Birchstein v. New United Motor Manufacturing, Inc., held that staring, even when it is not done in a sexually suggestive manner, may constitute sexual harassment. A female employee had alleged that a male employee stared at her two to ten times each day, each stare lasting from several seconds to 10 minutes, though never in a sexually suggestive manner. She had earlier reported the same man to her employer for overt sexual harassment, at which time he stopped speaking to her and began a staring campaign. The court could not take the overt acts of harassment into account because they were more than one year old and barred by the statute of limitations. However, the court held that a violation of gender-based harassment laws could be found based on the pattern of overt sexual harassment, followed by a complaint, followed by a retaliatory act.

As indicated above, sexually oriented posters in the workplace could also constitute (e.g., putting up posters and/or calendars depicting nude or scantily dressed women) and/or obscenities in the workplace can also create a hostile work environment sufficient to constitute sexual harassment.

It is important to note that conduct constituting sexual harassment can come from a variety of sources including supervisors, co-workers, customers, and vendors. In most cases, the employer will be held responsible for harassment that occurs on the premises in connection with the employment relationship. Employers are strictly liable for sexual harassment of a subordinate by a supervisor (and the supervisor who engaged in the sexual harassment is also personally liable). However, the employer is liable for harassment between co-workers only if the employer knew (or should have known) about the conduct and failed to take immediate and appropriate corrective action (but the employee is still personally liable nontheless). Surprisingly, employers may also even be responsible for acts of non-employees who harass their employees, applicants or independent contractors if the employer, its agents or supervisors knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Employers also have a duty to protect their employees from harassment by third parties, such as customers, even when harassment may be inherently part of the job.

Based on the expansion of protection against sexual harassment afforded to employees in the workplace as discussed above, employees should carefully evaluate their work environment and not hastily rule out any inappropriate conduct because what the employee thinks is permissible may actually constitute sexual harassment. Neither should employees be afraid to report acts or suspicions of sexual harassment based on the laws protecting against retaliation afforded by FEHA. However, because there is not always a fine line between what conduct amounts to unlawful sexual harassment, the advice of an employment attorney who specializes in this area is recommended. Employees should be cautious to not wait too long before investigating the matter due to the statute of limitations which prevents any possibility of recovery after a certain time has passed since the unlawful act.

Pre-Employment Screening and how its can violate your rights! With the job market being at one of its worst states ever in American history, the number of people looking for jobs are growing. In light of this, employers know they are in a better position to be selective and demanding in their application process and hiring criteria. However, employers must be careful not to cross certain boundaries that may amount to unlawful hiring practices. Certainly, employees should also be cautious of the pre-employment screening questionnaires they come across and be aware of the information they choose to divulge. Below are some (out of the many) modern issues that arise in the context of hiring and selection.

Laws on Pre-Employment Screening

The importance of knowing your rights when it comes to Pre-Employment Screening. California disabilities law restricts the use of a job applicant’s medical information. Note that this is a restriction, not an outright prohibition. During an interview or through an employment application, employers may ask about an applicant’s ability to perform the specific functions/tasks of the job. However, the employer cannot ask about the applicant’s health or medical history; this includes whether the applicant has ever filed a Workers’ Compensation claim. An example of a permissible inquiry would be, “Are you able to stand continuously for at least 5 hours per day?” An example of an impermissible inquiry would be, “Do you have any health condition that may prevent you from performing the job for which you are applying?”

Effective January 1, 2013, employers are prohibited from requiring or requesting applicants to disclose information regarding their personal social media accounts. Social media accounts can include Facebook, LinkedIn, Twitter, Myspace accounts, blogs, etc. Employers cannot ask applicants for their log-in information (e.g., username and password), require applicants to login to their own account in the presence of the employer or divulge any personal social media information. However, as would any other person in the general public, an employer may independently or through a use of an investigator search for and browse the employee’s social media account.

Employers are also prohibited from asking questions about marital status and/or children. An employer cannot ask an applicant if she is pregnant, has children or is planning to have children. Additionally, even if the employer already knows that applicant has children, the employer cannot ask if he/she has made provisions for childcare.

Under the Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. (A conditional job offer is an offer that is contingent upon the satisfaction of certain requirements). However, such post-offer medical examinations are permissible only if it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others. Such exams cannot be arbitrarily given and must be a requirement for all entering employees in similar positions.

The decision about whether to employ any person cannot be based on general beliefs about his/her disability, e.i., Pre-Employment Screening. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (e.g. all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper.

Note that if an employer decides not to hire (or promote) an applicant because of his/her disability, then the employer must allow the applicant the opportunity to submit an independent medical opinion. It is illegal for the employer to refuse the employee’s ability to do so.

If an employer refuses to hire (or in certain cases, promote) an applicant based on an illegal reason or selection criteria, the employee may have an employment claim against the employer. With that being said, applicants who have been subjected to any of the unlawful pre-employment inquiries discussed above should contact an employment attorney immediately to discuss his/her rights.

The restaurant hospitality industry houses employees who rely primarily on tips and gratuities as their primary source of income.

Simple as it may seem, this is one of the most prevalent issues I hear about in the employment law context – especially with respect to those that work in the hospitality industry such as bartenders, food servers, baristas, etc.Most of these people who complain about the way tips are distributed at their workplace are afraid or reluctant to complain about it to their employer due to their unfamiliarity with the applicable law.In light of the foregoing, it would be wise for anyone who works in the hospitality and/or restaurant industry to be knowledgeable about the law on gratuities in order to be able to distinguish between permissible and legal tipping practices versus impermissible and illegal tipping practices.

Tip Pooling

Tip pooling is very common practice in the restaurant and hospitality industry whereby tip pools are created so employees who receive tips share those tips with other employees. There are several reasons which justify this practice. First, it spreads the risk of low-tipping patrons among all tipped employees. Second, it creates a way for tips to be shared with employees considered deserving of tips, but not directly tipped by customers (e.g., table bussers). This is extremely common and frequently adopted in restaurants where all servers share in assisting all tables unlike the traditional direct table service arrangement. If an employer elects to use a tip pooling policy, the tips must be distributed to all classes of employees who contribute to the patron’s service. The employer or any of its agents (usually supervisors and managers) are not allowed to share in the pool.

Credit Card Tips

Employers are absolutely prohibited from deducting from a tip put on a credit card for processing fees or costs that are charged to the employer by the credit card company. Additionally, employees must receive their credit card tip amounts no later than the next regular payday following the date the patron authorized the credit card payment.

Overtime

Because tips are voluntarily left for an employee by the customer of the business and not being provided by the employer, they are not considered as part of the employee’s regular rate of pay when calculating overtime.

Tips v. Mandatory Service Charge

This is an important distinction because many people often get confused by the two. A tip is a voluntary amount left by a customer/patron for an employee. A mandatory service, charge, on the other hand, is an amount that a patron is required to pay based on a contractual agreement or a specified required service amount listed on the menu of an establishment. (e.g., 10-15% mandatory service charge added to the cost of a banquet.) Any distribution of a service charge to the employee, since it is not a tip, is at the discretion of the employer and would be in the nature of a bonus for purposes of calculating overtime payments.

Employees should not be afraid to speak up, complain, and/or object to an employer’s unfair tipping practices either directly to the employer or by making a compliant with the Labor Commissioner. Even if the employee is wrong in his/her complaint but genuinely believed the employer was being unlawful in its tipping policy, the law against retaliation protects employees from retaliating or discriminating against an employee in any manner whatsoever (e.g., discharge, demoting, reducing work hours, etc.).

Workplace violence is the violence or threat of violence against workers. It can range from threats and verbal abuse to physical assaults and homicide. The Occupational Safety and Health Act of 1970 was designed to prevent workers from being killed, or seriously harmed at work. Because workplace violence is one of the leading causes of fatal workplace injuries, it should not be taken lightly. Although there are currently no specific standards for workplace violence, under the General Duty Clause of the Act, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” The courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is possible way to reduce or eliminate the hazard.

The OSHA Act protects workers who complain to their employer, OSHA or other government agencies about unsafe or unhealthful working conditions in the workplace or environmental problems. You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you used any right given to you under the OSHA Act. This constitutes retaliation and and is prohibited by the State of California. Those who get retaliated against for complaining to OSHA or other governmental agency also have protections under the “whistleblower” statute. OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistle-blower statutes protecting employees who report violations of various workplace safety. Due to important time limitations and to ensure required procedures are being followed properly, it is recommended that anyone who has been retaliated against for complaining about workplace safety and/or violence consult with an employment attorney first to discuss the various rights and remedies that are available. If the perceived threat or danger is imminent, do not hesitate to call the police.

Wrongful termination settlements is said to have occurred when an employer has fired/laid off an employee in direct violation of their existing legal rights. If the wrongful termination law has been violated, the terminated employee can file his/her wrongful termonation settlements employment termination complaint with the government agencies. Alternatively, a private lawsuit can also be filed with the help of a wrongful termination Settlements lawyer.

The “At-Will” concept

All states have now adopted the doctrine of employment “at-will” to a certain degree. This means that employees can typically leave their jobs at any given time without any cause or advanced notice. In addition, it means that the employer can also typically fire / lay-off their employees at any given time without a specific reason. In many instances, employers legitimately ask employees to sign certain agreements or contracts that effectively document & enforce all the terms of this “at will” employment and this shows up in the company’s policy manuals.

The Exceptions

Of course, there are certain exceptions to the rule. Employees as well as employers are not permitted to breach the employment agreements/ contracts or even violate regulations, laws, constitutional provisions/ public policy when they are terminating employment. Exceptions such as intentional emotional distress, breach of implied contract and reliance on an employment offer do exist. “At will” employees can also be fired for certain job-related problems/ non-job-related reasons like personality conflict or the boss not liking the employee’s jokes.

These employees who have been wrongfully terminated have gone ahead and challenged the rules in court and won wrongful termination settlements and compensation. Though there is no fixed figure that can be attached to this kind of a settlement, it can sometimes be substantial. This settlement covers the lost wages and attorney’s fees & punitive damages are covered only under certain circumstances

The Right Legal Help

If a person has been wrongfully terminated and wishes to file a lawsuit against the employer, he/she will have to hire the services of a wrongful termination settlements lawyer. The person will provide the litigant all the details of this kind of filing and help with all the technicalities and legalities. Having a good lawyer can also result in a higher termination settlement and they will also be able to guide the person through the legal system. Since there are no hard and fast rules when it comes to winning a wrongful termination settlements, having the right legal help is top priority.

Call the Law Office of Stevens & McMillan Today (800) 738-3353 to get you the highest Wrongful termination settlements!

Unfortunately, sickness or injury can strike anyone at any time.  Fortunately, there are a number of laws which protect an Orange County Employee benefits attorney and allow him or her to take of time for health related issues.  Some of these laws include:

Family and Medical Leave Act (FMLA) – An Orange County Employee benefits attorney may take twelve workweeks of leave in a 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her job.

California Family Rights Act (CFRA) – An Orange County Employee benefits attorney may take twelve workweeks of leave in a 12-month period for a serious health condition including illness, injury (including on-the-job injuries), impairment, or physical or mental condition.

Pregnancy Disability Leave Law – An Orange County Employee benefits attorney disabled by pregnancy is entitled to up to four months disability leave. If the employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.

Pregnancy Discrimination Act (PDA) – Employers must treat pregnancy disability the same as any other disability and offer the same leave and/or accommodations that are offered to persons with other disabilities.

Americans with Disabilities Act – Subject to certain restrictions, a leave of absence may be required as a reasonable accommodation for a person with a disability.

Fair Employment and Housing Act (FEHA) – Like the ADA, FEHA may require an employer to give a leave of absence as a reasonable accommodation for a person with a disability.

Workers’ Compensation Act – An Orange County Employee benefits attorney who suffers a work-related injury and needs time off to recover may be entitled to a leave of absence.

If you have taken a leave of absence under one of these laws and feel like you have been discriminated or retaliated against for doing so, then please contact Stevens & McMillan at (800) 738-3353 for a free consultation. This article has only touched on the general scope of the law and is for information purposes only. This article is not intended to give legal advice.

Wyatt J. Holtsclaw | Attorney

Stevens & McMillan, Orange County Employee benefits attorney

335 Centennial Way

Tustin, CA 92780

714/730-1000

714/730-1067 Facsimile

A good number of people have no idea what breaks they are entitled to take after working a certain amount of hours. Many people currently work long hours during the day without breaks – either because they choose not to take one or simply because that right is unknown to them. As a matter of fact, people are actually surprised when told about the meal and rest breaks employers are required to give to employees depending on the number of hours that are worked each day.

Meal Periods

California requires that every employee who works more than five (5) hours each day must be given at least a thirty (30) minute meal period. This is probably most applicable to the general public since the standard full-time job is about 40 hours per week, 8 hours per day. Although some employers do offer up to an hour lunch, they are actually only required to give half an hour and MUST give at least half an hour. Alternatively, if a total workday is six (6) hours or less, the meal period may be waived by mutual consent of both the employer and employee.

If an employee works more than 10 hours per day, a second thirty (30) minute meal period is required. This second meal period may be waived by mutual consent of both the employer and employee if the total hours worked does not exceed twelve (12) hours and only if the first meal period was not waived.

Unless the employee is relieved of all duty during his/her thirty (30) minute meal period, the meal period is considered an “on-duty” meal period that is counted as hours worked which must be compensated at the employee’s rate of pay. However, such “on-duty” meal periods are permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. Some examples of when the nature of the work prevents an employee from being relieved of all duty (based on an objective standard) include a sole worker in a coffee kiosk, a sole pharmacist at a pharmacy, a sole worker in an all-night convenience store, a security guard stationed at a remote site, etc.. Even where the employee is relieved of all work duties but is still required to remain at the work site or facility during the meal period, the meal period must be paid.

If an employer fails to provide an employee w/ a meal period in accordance with what is required, the employer must pay one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided.

Rest Breaks

Employers must allow non-exempt employees to take a rest period that must, insofar as practicable, be taken in the middle or each work period. The rest period is based on the total hours worked daily and must be at the minimum rate of ten consecutive minutes for each four (4) hour work period, or a major fraction thereof. Thus, an employee who typically works an eight-hour workday may be entitled to two ten-minute breaks. On the other hand, rest periods are not required for employees whose total daily work time is less than 3 ½ hours.

Because rest periods are counted as time worked, the employer must pay for these periods. Consequently, employees can be required to remain on the employer’s premises during such periods. Where the employer does not authorize or permit a rest period, the employer must pay the employee one hour of pay at the employee’s regular rate for each workday that the rest period was not provided.

Retaliation

Despite an employee’s knowledge of the meal and rest breaks he or she is entitled to, rounding up the courage to demand those breaks is another story. Many people would rather just work through the hours without requesting breaks due to fear of losing their jobs. That is why California law also protects an employee against retaliation by the employer. Where an employer discriminates or retaliates (i.e., by demoting or terminating) against an employee because he or she objects to the fact that the employer is not providing employees with rest breaks or threatens to file a claim with the Labor Commissioner, the employee can file a discrimination/retaliation complaint, or in the alternative, obtain an attorney’s assistance in filing a lawsuit against the employer.

If you hope to get a job in the next three months, where in the US will you find the most vibrant employment market? According to the just-released Employment Outlook Survey from Milwaukee-based staffing giant ManpowerGroup, the No. 1 spot is the Cape Coral “Metropolitan Statistical Area,” a city designation coined by the Office of Management and Budget. The Cape Coral MSA, on Florida’s west coast 160 miles from Miami, includes Fort Myers.

Manpower MAN +0.17% ranks the top 100 MSAs. Each quarter it surveys employers in those cities about whether they plan to add or cut jobs, keep employment levels the same, or haven’t yet decided. In the Cape Coral area, a net 32% plan to hire new staff in the first quarter of 2015. That’s a substantial bump up from 23% a year ago. Dana Burnett, economic development director for the city of Cape Coral, says the city continues to rebound from the subprime mortgage crisis and construction jobs abound. “We got hit hard and we’re still waking up from that,” he says. Hertz announced last year that it was moving its headquarters to Estero, FLA, inside the Cape Coral MSA, and it’s in hiring mode. There are also retail jobs at the new Sam’s Club opening in January and jobs at a mega-Walmart planned for 2015. A shoe manufacturer, Camuto Group in Bonita Springs, is also hiring people who want to get a job.

Cape Coral’s robust picture compares favorably with a nationwide seasonally adjusted net employment outlook of 16%. That may not be as strong as the top MSAs on the list but, says Manpower Senior Vice President Kip Wright, “This is one of the most positive outlooks in the last six or seven years. It’s the strongest it’s been since Q1 of 2008,” he says. “We’re starting to see that the recovery is sustained, the stock market is improving, oil and gas prices are stabilizing, consumers have more money in their pockets and they’re rebuilding their savings.” The other plus: while there is plenty of low-wage food service and retail jobs, according to the Bureau of Labor Statistics (roughly one-eight of the new job openings in September 2014 were in retail trade, according to the BLS), there are also many jobs in professional business services, manufacturing, health care, and construction.

To gauge companies’ hiring plans, Manpower surveyed more than 18,000 US employers, gathering data in the top 100 metro areas. It used a research firm that quizzed hiring managers and human resource professionals by phone and email over the first two weeks of October. The firm asked one multiple-choice question about companies’ plans for the first quarter of 2015: How do you anticipate total employment at your location to change in the next three months to the end of March 2014, as compared to the current quarter? Companies could choose four answers: Increase staff. Reduce staff. Keep staff levels the same. Unsure. Then Manpower crunched the numbers and came up with a “net employment outlook.” The survey is a rough measure since it doesn’t count the number of jobs employers plan to add or subtract, but simply asks whether they plan to hire or fire.

After Cape Coral, the second-strongest hiring outlook is in McAllen, TX, near the southernmost tip of the state. A net 29% of employers plan to hire in Q1, the same number as a year ago. Kelli Stanton, Manpower’s regional director for South Texas says there are jobs opening up in construction, durable goods manufacturing, transportation, utilities, and professional and business services. There is also a lot of retail construction and new restaurant chains like Texas Roadhouse. Because it’s on the border, McAllen benefits from Mexicans who go there to shop for goods they can’t get at home.

Deltona, FLA, and Grand Rapids, MI are tied for third place. One of the spurs to Deltona’s growth is major construction at the Daytona speedway (Daytona is part of the Deltona MSA) that is adding a new level onto the structure, and across from the speedway, workers have broken ground on One Daytona, a huge shopping center centered around a Bass Pro Shop sporting goods store. Grand Rapids is benefiting from a housing revival after the whole state was severely battered by the great recession. Some of the employers that are in hiring mode: Steelcase, Spectrum Health, Mercy Health and Amway. Cascade Engineering, an auto products manufacturing, is also taking on new employees.

The city with the worst job outlook: Spokane, WA, with only a 2% net employment outlook, though Manpower Business Development Manager Christina Gross says the Spokane economy isn’t doing as poorly as that number suggests. “It’s a reflection of winter,” she says. Retailers hire a lot of temporary work for the holidays and then scale back hiring in Q1.” But Spokane also has three health care facilities and an insurer, Premera Blue Cross, that are doing well, and four universities including Washington State, also generate employment. “We’re busier and the overall feel is that people are getting back to work,” she says.

See our slide show above for 13 cities where the hiring outlook is the best (there are several ties so we included more than 10) and 11 cities with the worst net employment outlook (there is a six-way tie for fourth place).

Article extracted from Forbes.com