Frequently Asked Questions

• WHAT IS A "CLASS ACTION"?
• IF I KNOW A CLASS ACTION SHOULD BE FILED, WHAT CAN I DO?
• WHEN AM I ENTITLED TO A MEAL AND/OR REST PERIOD?
• WHEN AM I ENTITLED TO OVERTIME?
• WHEN IS TERMINATION "WRONGFUL"?
• WHAT IS "SEXUAL HARASSMENT"?
• WHAT OTHER FORMS OF HARASSMENT/DISCRIMINATION ARE ILLEGAL?
• WHAT CONSTITUTES "RETALIATION"?
• WHAT IF I AM A CURRENT EMPLOYEE AND WANT TO PURSUE A CLAIM?

Top of Page

WHAT IS A "CLASS ACTION"?

A "class action" is a lawsuit brought by one or more claimants as representatives for an entire group of claimants who have been affected by a common violation but who do not need to participate in the lawsuit in order to be awarded a recovery. A class action suit may occur when many different people combine their similar complaints. This saves court time and allows a single judge to hear all the concerns at the same time, and come to one settlement or resolution for all parties. This process creates a procedure for redressing a relatively small claim that might otherwise be too costly to litigate on an individual basis.

The courts closely monitor class action cases. A case may not proceed on a class basis until the court certifies that it meets the requirements of a class action. When a trial court certifies a case as a class action, there is no necessity to "join" that Class. A class member is automatically a member of the certified Class, unless that member elects to exclude themselves or "opt out" of the Class. No resolution is final without court approval, including any award of attorney's fees.

A claim may be maintained as a class action under California law when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. There must be an "ascertainable class," which means class members can be clearly defined and identified. This allows a court to provide notice of the class action to all potentially affected. There must also be a "community of interest" in the subject matter of the action, including predominant common questions of law or fact, class representatives with claims or defenses typical of the class, and class representatives and competent class counsel who can adequately represent the class.

For example, failure to pay overtime or other wage and hour violations rarely impact only a single worker. One employee can bring an action against an employer as the representative of every similarly-situated employee suffering the same treatment, including different job classifications.

In order to fairly compensate individuals to bring on these types of class actions, the Courts have also allowed incentive pay to the representative plaintiffs to compensate them for their time and effort in bringing the class action for the benefit of the class member where the class action is won. These awards can range from nominal amounts to tens of thousands of dollars. Lawyers who represent a class for money damages or restitution are generally paid out of the recovery. Attorney's fees and costs of litigation are not paid up front by claimants and only come out of any recovery.

Top of Page

IF I KNOW A CLASS ACTION SHOULD BE FILED, WHAT CAN I DO?

No person, and certainly no attorney, should tell you that you must file or are obligated to file a class action. Individuals who have concerns about whether to file a class action should discuss those concerns with an attorney experienced in class action litigation. While we cannot make statements about the billing practices of other law offices, The Carter Law Firm will never charge you for contacting us by e-mail, direct mail or telephone to discuss a potential class action. While we obviously cannot guarantee, before talking to you, that you have a lawsuit worth pursuing, we do guarantee that all discussions about potential cases will be kept strictly confidential and that there is no obligation on your part to do anything after our discussion.

While retaining an attorney is not required in order to prosecute a lawsuit, we strongly advise against filing one without legal representation, especially if it is brought as a class action. The legal system is complex and class actions, by definition, are extremely difficult to maintain without the benefit of legal counsel that is well versed in class action procedure. Our firm is well aware of the pitfalls that exist in pursuing litigation of this nature due to our extensive background as class action attorneys.

Top of Page

WHEN AM I ENTITLED TO A MEAL AND/OR REST PERIOD?

Your entitlement to rest and meal periods is determined by two factors: (1) whether you are an hourly (overtime non-exempt) or a salaried (overtime exempt) employee and (2) how many hours you work during a particular shift. Although not provided under federal law, California state law requires that non-exempt (hourly) employees be permitted unpaid meal and paid rest periods under certain conditions. For non-exempt employees, meal periods are due according to the following schedule:
If five or more hours of work, a 30 minute unpaid meal period is due. This period may be waived by mutual consent of both the employer and employee if the total work period is no more than six hours. If ten or more hours of work, a second 30 minute unpaid meal period is due. This period may be waived by mutual consent of both the employer and employee if the total work period is no more than 12 hours, and only if the first 30 minute meal period was not waived.

For non-exempt employees, rest periods are based on the total hours worked daily at the rate of 10 minutes net rest time per four hours or major fraction thereof.

If an employer fails to properly provide an employee a rest or meal period in accordance with the schedule set forth above, the employer shall pay the employee one hour of pay at the employee's regular rate of compensation for each work day that the rest or meal period is not provided. Note, however, that only one rest period violation per day is compensable, meaning that denial of more than one rest period in any given day is still compensable by only one hour of pay.

Since many employers that fail to allow break periods do so on a regular basis and/or to many employees, lawsuits for violations of the above-referenced laws can yield high settlements or judgments. Please contact our firm for more information.

Top of Page

WHEN AM I ENTITLED TO OVERTIME?

California's overtime laws embody our State's public policy designed to ensure the right of employees to premium/overtime pay for hours worked in excess of 40 hours per week or 8 hours per day. Even today, the provisions of California's Labor Code are being violated by thousands of employers across California who engage in illegal labor practices, including misclassifying groups of employees as "Managers," "Assistant Managers," "Outside Salespeople," "Administrators" or other seemingly-exempt positions. These workers are then paid a flat salary for as many hours of work as the employer demands, thereby being deprived of overtime pay to which they are rightfully entitled. By improperly claiming that employees primarily perform management, sales or administrative work, when many of them do not, California employers have saved themselves billions of payroll dollars, have unlawfully under-reported wages to federal and state authorities and have underpaid state and federal taxes, employer matching funds, as well as unemployment, Social Security, Medicare and Workers' Compensation premiums.

By this conduct, these companies also violate California's Unfair Competition Act by unfairly avoiding the payment of wages and premiums that other, law-abiding companies, are required to and do pay. The illegal competitive advantage that the violating companies gain in this manner is remedied through restitution of the unlawful profits to the victim-workers in the form of previously-unpaid wages. Under current law, a worker is permitted to recover four years of wages from his/her employer in such a case.

Since all California employees are, at least, presumed to be non-exempt (i.e., entitled to overtime pay), no matter what title they are assigned by the employer, it is the employer that is required to prove, if challenged, that the employee questioning the classification is truly exempt. Given the current state of California law, this is often times an extremely difficult burden for the employer to meet. Among other things, California law states that exempt status is limited to employees performing jobs that are "plainly and unmistakably" exempt. Moreover, the Courts generally pay little attention to job descriptions since those are usually manufactured by the employer, without any employee input, and are not guaranteed to accurately reflect the actual work being performed in the position. Instead, the test of whether an exemption applies depends on the work tasks that the employee actually performs and whether more than one-half of the employee's working time is spent performing duties considered to be "exempt" or closely related to exempt tasks. As such, in lawsuits which challenge overtime exemptions, one of the most common disputes deals with how many minutes/hours the worker spends performing various tasks in a mathematical calculation-type approach.

The most common type of case brought to our attention alleges the misclassification of hourly workers (e.g., Managers, Assistant Managers, Outside Salespeople and/or Administrators) within the industries of food service, beverage sales and distribution, insurance and/or, most commonly, retail. The plaintiffs in such cases have often been highly successful in changing unlawful employment practices and recovering previously-unpaid overtime wages, penalties, costs and attorneys' fees.

While the primary recovery sought in overtime cases is payment of the overtime wages themselves, California law allows for various forms of penalties as well as the recovery of costs and attorneys' fees. The provisions allowing recovery of costs and attorneys' fees are of significant benefit to workers considering bringing wage and hour claims since the legal work involved in prosecuting such cases through trial and/or any necessary appeals can be substantial.

It is against the law for an employer to take any retaliatory action against an employee in response to an employee exercising a legal right such as seeking overtime pay, or other legally required employment benefits. Such conduct by an employer exposes the employer to further legal action for all damages caused by the retaliation - including claims for punitive damages.

Further it is illegal for an employer to enter into an agreement with an employee whereby an employee waives overtime compensation. Any such agreements are void.

Top of Page

WHEN IS TERMINATION "WRONGFUL"?

In California, employees are presumed to be "at will" employees, meaning that, for most workers, no contract of employment exists which guarantees continued employment. Just as an employer can terminate an employee "at will" and with no prior notice of any kind, in most circumstances, an employee can similarly terminate his/her relationship with the employer without advance notice. Because of this, the offering of "two weeks notice" or some similar amount of prior warning is, in most circumstances, not required and equates to nothing more than employee courtesy or an employer's request for time to hire and train a suitable replacement.

Although employment, for most California workers, is presumed to be at the will of the employer, there are exceptions to this presumption too numerous to list and discuss here. Commonly litigated exceptions to "at will" employment arise in contexts involving government agencies or other public employers (where employment is often controlled by statute or regulation) and unions (where employment is governed by a Collective Bargaining Agreement). Perhaps equally common (and certainly well-publicized) are disputes with private employers where employment is alleged to have ended in violation of statutory discrimination laws or common laws addressing contracts of employment not terminable without "good cause." Elsewhere on this web page are examples of some of these kinds of protected bases for discrimination actions. We direct you to that section of this web site for further information.

Damages that can be recovered in a case vary, depending on the underlying reason for the termination, what allegations are pled in the aggrieved party's civil action and in which court/forum (e.g., state court, federal court, the Department of Fair Employment & Housing, Equal Employment Opportunity Commission) the action is brought. In all California courts, back wages and future wages are recoverable items as are damages for emotional distress and its physical manifestations and expenses relating to medical and/or psychological treatment. In some forums, punitive damages, costs and attorneys' fees are recoverable. Decisions regarding whether to allow an administrative agency such as the Department of Fair Employment & Housing or Equal Employment Opportunity Commission to adjudicate your claims versus pursuing your civil action in state or federal court should be made only after a discussion with experienced legal counsel.

Top of Page

WHAT IS "SEXUAL HARASSMENT"?

Sexual harassment of an individual is prohibited by state and federal laws. Title VII of the Civil Rights Act of 1964 (Section 703) establishes that employers may not discriminate on the basis of sex, and that sexual harassment is a form of sex discrimination. Any number of actions may constitute sexual harassment.

The Equal Opportunity Commission (EEOC) defines sexual harassment as:
Unwelcome sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature constitutes sex harassment when [a] submission to such conduct is made an explicit or implicit term or condition of an individual's employment, [b] submission to or rejection of such conduct is used as the basis for employment decisions, and [c] such conduct unreasonably interferes with work performance, or creates an intimidating, hostile or offensive working environment.*

* Equal Employment Opportunity Commission. Guidelines on Discrimination Because of Sex. Code of Federal Regulations, Title 29, Part §1604.11 Washington, D.C.: Equal Employment Opportunity Commission.

California Law similarly prohibits sexual harassment and sex discrimination and is even more protective than federal law. The rules pertaining to these prohibitions are found in California's Fair Employment & Housing Act (California Government Code Section 12900, et seq.)

You are also legally protected if you choose to report sexual harassment that affects someone else, but not you directly. If you desire additional information on what constitutes sexual harassment or discrimination or what your rights are with regard to reporting such unlawful activity in your workplace, we are available to discuss these issues with you.

Top of Page

WHAT OTHER FORMS OF HARASSMENT/DISCRIMINATION ARE ILLEGAL?

Under California's Fair Employment & Housing Act it is also unlawful for an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sexual orientation, age, condition of pregnancy or child/family care needs of an employee, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privileges of employment. Bear in mind that the foregoing is not an exhaustive list of prohibited grounds for discrimination.

Exemptions from certain discrimination laws exist, for example, for small employers (those employers with less than five full-time employees), where actions are based upon a bona fide occupational qualification or where based upon applicable securities industry regulations established by the United States or by the State of California. Other forms of discrimination may require higher numbers (e.g., 15, 25 or 50) of employees of the potential defendant for a lawsuit to be permitted.

It is also unlawful for a worker to harass a co-worker under certain circumstances. Whether such discrimination is actionable as a lawsuit will depend on a variety of factors, such as whether the employer knew or should have known about the occurrence of discrimination and whether or not the employer took immediate remedial measures to ensure that the discrimination would stop.

Available remedies for violations of these anti-discrimination laws may include reinstatement of a wrongfully terminated employee, an award of back and future pay, interest, emotional distress damages, medical expense reimbursement, punitive damages, costs of the lawsuit and attorneys' fees.

Top of Page

WHAT CONSTITUTES "RETALIATION"?

First and foremost, retaliation is illegal if it is done for the purpose of punishing an attempt to investigate and/or enforce protected rights. Retaliation is not limited to a particular type of punishment (e.g., termination or suspension of employment, wage reduction) in response to such an investigation or enforcement of rights. Retaliation can come in many forms and, as such, is loosely defined as any adverse action against the protected party so long as it can be proven that the adverse action was truly the result of engaging in some protected activity. It is not required that actual monetary loss occurs for a claim of retaliation to succeed.

The damages and penalties/fines for retaliation can be substantial, particularly against large companies where the amount of penalties/fines assessed may be in an amount sufficient to deter similar misconduct in the future (e.g., in the event of an award of punitive damages). Many of the statutes which address retaliation claims include a provision for the recovery of attorneys' fees. The potential for recovery of attorneys' fees in addition to an award of damages is of great importance since the fees incurred in prosecuting retaliation cases can be substantial whether paid on an hourly or contingent basis.

Top of Page

WHAT IF I AM A CURRENT EMPLOYEE AND WANT TO PURSUE A CLAIM?

Employers cannot retaliate against employees who seek to enforce their employment rights under the law. An employer cannot fire, demote or otherwise harass employees who seek to obtain wages and benefits legally owed to them. To protect employees, statutes provide for damages, and injunctive relief ordering the employer to refrain from prohibited conduct. Employers face big penalties if they retaliate against employees who pursue their wages, overtime pay, and other benefits.

Top of Page