Tong Robbins LLP - Law Firm

EMPLOYMENT LITIGATION

The Labor Code in California is one of the most complex areas of law in the nation. Our firm has successfully resolved numerous discrimination and retaliation actions. Of special interest in Silicon Valley, is the eminently complicated question of whether a worker is properly classified as an employee or an independent contractor. Our attorneys have extensive experience in taking these “misclassification” cases to trial.

Discrimination

To "discriminate" against an employee means to treat that employee differently, or less favorably, based on the employee being a member of a "protected class." Unlawful employment discrimination includes:

Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information.
Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information.
Denial of a reasonable workplace change that you need because of your religious beliefs or disability.
Improper questions about or disclosure of your genetic information or medical information.
Retaliation because you complained about job discrimination or assisted with a job discrimination proceeding, such as an investigation or lawsuit.

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Contractor or Employee?

Misclassification of workers occurs when an employer improperly classifies their employees as independent contractors so that they do not have to pay payroll taxes, minimum wage or overtime, or comply with other wage and hour law requirements such as providing meal periods and rest breaks. Misclassification, or labeling a worker as an independent contractor when they should be an employee, undermines businesses who play by the rules and basic worker protections like minimum wage, paid sick days, and the safety of workplaces. Additionally, the misclassified worker has no workers’ compensation coverage if injured on the job, no right to family leave, no unemployment insurance, no legal right to organize or join a union, and no protection against employer retaliation. This is a form of fraud.

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Wage and Hour

“A complex scheme of overlapping statutes, regulations, interpretations and precedent governs the compensation of employees in California.” Kao v. Holiday, 12 Cal. App. 5th 947, 954 (2017). Governing statutes include the federal Fair Labor Standards Act, 29 U.S.C. §§ 201–219, and various California Labor Code provisions. “Although state law standards are generally more protective of employees than federal standards, California employers must comply with whichever standard provides greater protection to employees.” Kao, 12 Cal. App. 5th at 955see Aguilar v. Association for Retarded Citizens, 234 Cal. App. 3d 21, 34 (1991) (explaining “federal law does not control unless it is more beneficial to employees than the state law”).

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