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Know Your Rights:


Do I have a case?

The merits of any case can only be determined after many hours of discussion and a review of any documents by the lawyers who are asked to evaluate your case. You can assist lawyers in evaluating your case by spending time in advance of meeting with them by preparing a chronology and organizing any documents. If the lawyer you consult does not provide you with a favorable opinion or provides you with an opinion you disagree with, you should consult another attorney to obtain a consensus.

How do I pick an attorney?

Picking an attorney to represent you in any matter should be done carefully and only after a lengthy discussion between you and the attorney. A successful attorney-client relationship is based on trust. You should remember that an attorney works for you and that while he or she has unique skills and education, picking the right lawyer should be about finding the right person. Few lawyers are skilled in all areas of law. If your matter involves a labor or employment issue, you should find a lawyer or law firm specializing in this area. Several organizations can assist in providing names of lawyers or law firms specializing in this area. Your local bar association, California Employment Lawyers Association, and the National Employment Lawyers Association can recommend lawyers.

How long do I have before I file suit against my employer?

The rules that govern the time frame in which you must file a lawsuit are called statutes of limitations. Statutes of limitations in employment matters vary according to the claim. The application of these rules to your particular case is often complicated and requires the assistance of a lawyer. However, you should generally be aware of these rules and understand that there is little leeway or exception for filing claims beyond these statutes. Typically, you have two years from the date of injury to file tort (personal injury) claims. Tort claims in employment cases include emotional distress, battery, slander, and libel claims, among others. Claims of discrimination based on your race, nationality, gender, age, disability, or sexual preference have a separate requirement called “exhausting administrative remedies” in addition to the statute of limitations. Exhaustion of administrative remedies means that there are separate state or federal requirements that must be completed before you can bring a discrimination lawsuit. These requirements govern the time in which you must file a discrimination lawsuit. Several statutes may apply to employment claims such as provisions of the Labor Code and California Business and Professions Code as well as the federal and state tort claims act. Each of these statutes may have its own filing deadline that you must consider.

What is the EEOC (Equal Employment Opportunity Commission)?

The EEOC is a federal agency. The EEOC assists in the administration and sometimes the adjudication of discrimination claims. The law governing discrimination claims is called Title VII. The purpose of filing charges with the EEOC is to assure timely notice to the employer of claims of discrimination (like a statute of limitations). Title VII actions cannot proceed in federal court unless discrimination charges are filed with the EEOC within a specific time limit after the allegedly unlawful employment practice “occurred.” There are certain exceptions to this rule but you should be mindful of the time limitations. If you are a federal employee or wish to be in federal court, you must file with the EEOC.

What is DFEH (Department of Fair Employment and Housing)?

California has a similar agency called the Department of Fair Employment and Housing (DFEH). The time limit for filing a claim with the DFEH is one year from the unlawful act. If you are not a federal employee and wish to file a claim of discrimination or harassment against your employer, you may file with the DFEH. By obtaining a right to sue or asking for an investigation from the DFEH, you will generally be allowed to file your lawsuit in state court.

Discrimination charges filed with either the EEOC or DFEH past the statutory time frame will generally not be considered by the courts. Generally, you cannot file a lawsuit alleging discrimination unless you have first filed a claim with either or both the EEOC or DFEH. The rules for timely filing and which agency to file with can be complex. The assistance of a lawyer can be important in deciding when or with whom to file a complaint.

What is an at-will employee?

In California (and, in most states), the general rule is that most employees may be fired at any time for any reason or no reason at all under what is known as the at-will employment doctrine.

Exceptions to the “at will” doctrine include Common Law Protections: California is particularly generous in its treatment of employees. California has the largest economy in the United States and the fifth-largest in the world.

  • California recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates the fundamental principles of public policy if an employee has a cause of action. In other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
  • The public policy must serve the interests of the public (i.e., protect the public from harm) rather than merely that of the individual (or company). Accordingly, an employee who reveals to his current employer that a co-worker is under investigation for embezzlement at another company is said to be serving only a private interest: the interest of the employer. Although the employee’s disclosure may be beneficial to most employers, and the employee is not protected from retaliation. Many of the exceptions are outlined in statutory provisions under California law, including the Department of Fair Employment and Housing, Worker’s Compensation, The Unruh Act, and many other statutory schemes to protect California Workers.
Have I been misclassified as an independent contractor?

Workers in many fields are misclassified as independent contractors when by law, they are employees who are entitled to minimum wage, overtime at the rate of time and one half, and having employers bear the cost of work-related expenses.

The misclassification of workers as contractors is common in industries such as truck drivers, delivery drivers, janitors, security guards, store delivery persons, and home health care providers such as nurses, home health aides, and various therapists and exotic dancers.

The test for who is an independent contractor is complex. Still, at a minimum, the independent contractor must have complete autonomy, work in a business different than the one he/she is doing work for and, be running their own independent business.

If you work in a job and are classified as an independent contractor and believe you may be misclassified, please call the Law Office of Andrea Cook & Associates.

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