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Employment Law FAQ

Answers You Need from Our Employment Attorney

At Diefer Law Group, PC, we know that many employees who start to explore their employee rights and legal options have a difficult time sifting through the numerous state and federal laws inherent to this focused legal area.

As knowing the facts can make such a marked difference in your ability to successfully assert your rights, you need to be sure that the information you receive comes from a reliable source. In order to help you begin your legal journey on the right foot, our Orange County employment lawyers have chosen to answer some of the most frequently asked questions we hear about employment law and employee rights.

How do I voice a complaint about my employer?
Employees have several available avenues to voice complaints, including internally within the company or externally to government agencies or administrative entities, which can also include whistleblower claims. The nature of your complaint and who it involves also plays a role in how you may go about this process. Regardless of the situation, bringing your case to the attention of an employment attorney can enable you to obtain qualified legal advice about all of your available options, as well as assistance when pursuing the action.

Can employers fire or demote me when I take leave?
Under the Family & Medical Leave Act of 1993 (FMLA), employers are required to provide employees with 12 workweeks of leave in any 12-month period for reasons such as pregnancy, adoption or foster care placement, personal or family illness, or military leave. They are also required to ensure that you have access to medical benefits during this time and that you have the right to return to the same position you had before or to one with equal benefits, responsibility, and pay.

What are protected classes?
Protected classes refer to certain characteristics that employers cannot base employment decisions on or discriminate against when evaluating employees. Generally, applicants and employees are protected against discrimination based on any of the a variety of characteristics.

The protected classes include:

  • Race, color, national origin
  • Age (40 and over)
  • Sex, sexual orientation, and gender expression
  • Familial or marital status
  • Disability status
  • Religion

What is employer retaliation?
Employer retaliation refers to any negative employment action taken by an employer for unlawful reasons. When an employer enacts an adverse employment decision - such as termination, demotion, or a negative performance review - in response to an employee engaging in any protected activity, the employer is in violation of the law.

How much is my claim worth?
The value of your potential claim is always a matter that depends heavily on the unique facts and circumstances involved, including the type of violation made by your employer and the nature of the damages you suffered. Although every case may vary, claims for employment law issues typically award employees compensation for lost wages and possibly for emotional and punitive damages, depending on the situation.

Am I entitled to overtime?

It depends on whether you meet the test for exempt status as defined by federal and state laws. If you are exempt from the Fair Labor Standards Act then you are not entitled to overtime pay. If you are not exempt, then you are entitled to overtime pay. Exemptions include:

  • "The executive exemption": Any employee who spends over half their work time managing businesses or departments of a business
  • "The administrative exemption": Any employee who spends over half their work time assisting an exempt individual in "servicing" a business in matters of significance
  • "The professional exemption": Any employee who has certain licenses to practice a profession or who works in a "learned or artistic" profession
  • "The computer software professional exemption": Any employees who work in highly theoretical aspects of computer software, making over $41 an hour
  • "The outside salesperson exemption": Any employee who works away from the workplace making sales/filling orders.

To determine whether or not you could be eligible for overtime, the best step you can take is to discuss your circumstances with one of our knowledgeable Orange County employment law attorneys.

What are the protections for the physically and mentally handicapped?

Under the Americans with Disabilities Act, federal laws were established that an employer cannot discriminate against a disabled individual who can physically perform the job he/she has applied for. This protection also extends to:

  • Hiring
  • Firing
  • Advancement
  • Compensation
  • Training
  • Recruitment
  • Advertising
  • Tenure
  • Layoffs
  • Leaves
  • Fringe benefits
  • And more!

If you believe you have been discriminated against, as a result of your physical/mental disability, it is imperative that you secure legal representation immediately.

What is sexual harassment?

The Federal Equal Employment Commission defined sexual harassment as "unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature…" This behavior tends to create an intimidating, hostile and offensive work environment. In many situations, the submission to or rejection of these advances are used to determine employment decisions. For the harassment to be illegal, the victim must have made a request for the behavior to stop.

Do I really need an attorney?
Although there is no legal requirement for you to have representation when asserting your workplace rights, there is simply far too much that can go wrong to not work with experienced attorneys. From convoluted legal concepts and laws to the overwhelming potential for employers to aggressively contest claims, these types of cases can quickly become too much for employees with no legal backgrounds to handle. Additionally, working with an attorney can ensure that you fully understand your rights and legal options and that you have bold advocates by your side to help you as you pursue the resolution you require.

If you have any additional questions, or if you wish to personally discuss your case with a member of our legal team, please contact an OC employment lawyer from Diefer Law Group, PC today.

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