YOUR RIGHTS AS AN EMPLOYEE UNDER THE LAW
This booklet is an informational guide about your rights as an employee under California law. It is divided into four (4) categories:
A. In General
B. Wages, Overtime, and Vacation Time
C. Safety and Worker's Compensation
D. Employment Discrimination
III. Post-employment
IV. Resources
A. Legal Services & Referral Agencies
B. Government Agencies
The information in this booklet covers only basic issues in employment law. If you are experiencing problems with your employer or co-workers, you should seek advice from an attorney or call any of the resources listed on the back page of this booklet.
The following questions refer to your rights when you are applying for a job, before you are hired.
1. What if I lie on my job application?
If you lie on your job application and you get the job, your employer can fire you, no matter how long you have worked for your employer.
2. What questions can an employer ask me during my interview?
An employer may ask you about anything, but they cannot ask about your: race, color, sex, religion, national origin, birthplace, or sexual orientation.
3. Can an employer ask me how old I am?
No. An employer can’t ask your age, but they can ask if you are over 18 years old.
Except: If the job application states "the Age Discrimination in Employment Act prohibits discrimination against individuals age 40 and over," then an employer may ask questions about your age.
4. Can an employer ask me if I’m pregnant or if I’m married?
No, an employer can’t ask if you’re pregnant or plan to become pregnant, if you’re married, how many children you have, or what your child care arrangements are.
5. Can an employer ask me if I’m disabled?
No, an employer can’t ask you if you have any disabilities, medical conditions, or if you’ve ever filed a claim for worker’s compensation. However, an employer may ask you specific questions about your ability to perform the job’s duties.
6. Can an employer ask me about past illegal drug use?
No, an employer can’t ask if you’ve used illegal drugs in the past but they can ask you questions about your current illegal drug use and can refuse to hire you based on that information.
7. Can an employer ask me if I’ve ever been arrested if that arrest didn’t result in a conviction?
Generally, an employer can’t ask if you’ve been arrested, but they can ask if you’ve been convicted of a crime (see next question).
Except: If you are applying to be a peace officer or a health care worker with access to drugs or patients, then an employer can ask if you’ve ever been arrested.
Also, an employer may ask if you are out on bail or own recognizance (OR) pending a trial.
8. Can an employer ask me if I’ve ever been convicted of a crime?
Yes. It is legal for an employer to ask you questions about your criminal convictions and to use that information in deciding whether to hire you.
9. Can an employer ask me whether I’m a U.S. citizen?
Yes, an employer can ask you whether you’re a U.S. citizen, but they can’t use that information in deciding whether to hire you.
Except: An employer can decide not to hire you based on your citizenship status if they are required to hire only citizens under law, regulation, or government contract.
Except: If two people, a citizen and a non-citizen are equally qualified for the job, then an employer can choose to hire the citizen.
Keep in mind that an employer must make sure you are authorized to work in the U.S. If you are undocumented and you don’t have a work permit, an employer can’t hire you.
10. What if an employer refuses to hire me because I have a heavy accent or because I’m not fluent in English?
The only time when an employer can refuse to hire you because of your accent or English fluency is when it would substantially interfere with your job performance. If your heavy accent or English fluency does not interfere with your job duties, then it is illegal for an employer to refuse to hire you.
11. What if an employer asks me questions they’re not supposed to?
If you are denied a job because of your answers to an employer’s illegal questions, or because you refused to answer such questions, you can sue them for the job and lost wages and benefits.
12. Do I have to give my fingerprints to an employer before I am hired?
An employer can require your fingerprints as long as they are used within the company. If the employer wants to use your fingerprints to get your criminal history, you have to give them written permission.
13. Do I have to pass any tests before I am hired?
It depends. You may be required to take a test to measure your specific job skills. Also, an employer can require you to take a medical or psychological test after you’re offered the job but before you start working, as long as it is related to your job.
14. Do I have to take a drug test before I’m hired?
It depends on the type of work you’ll be doing. An employer may have the right to require you to take and pass a test for illegal drugs after you’ve been offered the job, but before you start work. If you don’t pass the drug test, the employer doesn’t have to hire you.
The following issues regard your rights when you are employed. You have more legal rights as an employee than as a job applicant. Keep in mind that if you are an independent contractor, you have different rights because under the law, you are not an employee.
1. What materials should my employer give me when I’m hired?
Generally, an employer will give you a lot of papers to sign when you’re hired. These may include an I-9 form for work eligibility, a W-4 form for tax purposes, and your offer letter. In addition, some employers may also give you an employee manual, corporate policies and procedures, and information about benefits. You should keep all of these papers in a safe place.
2. Do I have to pay for my uniform?
It depends. If you are required to wear clothes that have a distinctive color or design, then your employer must pay for the uniform. Your employer can ask you for a security deposit or have you sign an agreement to pay for the uniform if you don’t return it when you quit. Your employer must clean or repair your uniform, or give you money to clean it if it requires dry cleaning. If your employer only requires you to wear certain colors of your own clothes, then you have to buy your uniform.
3. Do I have the right to look at my personnel file?
Yes, you can look at your own personnel file, which includes any documents relating to your job application, circumstances on the job, and any documents that are used in decisions to hire, promote, demote, discipline or fire you. If you disagree with what’s in your file, you can ask your employer to correct the information, remove it from your file, or write your own account of the false information. You can also look at your personnel file after you’ve left the job, because the employer must keep your file for a certain period of time, as required by law.
Except: If you work in certain state or public school districts, you may not have this right.
4. If I break or lose something at work, do I have to pay for it?
It depends. If your employer can prove that you lost or broke the item, then your employer can deduct the cost of the item from your wages.
5. Do I have to take a drug test?
It depends on your type of job. If your job is a security or safety position, then your employer generally has the right to require you to take a drug test. However, if your employer suspects you are using illegal drugs and it interferes with your work performance, then you will probably have to take a drug test.
B. Wages, Overtime and Vacation Time
1. What is minimum wage?
Minimum wage is a standard hourly pay rate set by the state of California, and by the federal government. Currently, the California minimum wage is $6.75/hour, and it covers almost all workers. If you receive tips or gratuities, they do not count towards your minimum wage.
2. How do I know if I’m getting a fair wage for my job?
In California, there are standard wage rates and working conditions depending on which industry or occupation you work in. These regulations cover all industries except government employees, family employees, outside salespersons and personal attendants in private households.
3. Can my employer pay a female worker a lower rate than a male worker if they are doing the same job?
No. Your employer cannot pay two workers different wages based only on whether they are male or female.
4. Can my employer keep any of my wages?
No, your employer can’t keep any of your wages. Your employer must deduct taxes and other items required by law, and items that you have previously agreed to (such as insurance or a retirement fund). In addition, if you break or lose something at work, your employer can subtract the cost from your wages.
5. Can my employer take any of my tips away?
No, your employer can’t take any portion of your tips, but your employer can require you to pool your tips among your co-workers.
6. How often should I get paid?
Your employer must post a set schedule of paydays and pay you on those days every month. Your employer must pay you at least two (2) times per month.
Except: Certain state employees only get paid once per month.
7. How many hours should I get paid for?
Your employer must pay you for all the hours you have worked. This includes all the time your employer has control over you, including when you are on "stand-by" if your activities are significantly limited. If your meal periods are less than 30 minutes long, then they are included in the hours you have worked. You also get paid for a ten (10) minute break for every four (4) hours you work. You should always keep a written record of all the hours you have worked for each pay period, even if you have a time card.
8. Does my employer have to pay me for overtime?
If you get paid by the hour, then your employer must pay you for overtime work. In California, overtime is hours worked over forty (40) hours per week. Generally, you will get 1½ times your normal hourly wage. Keep in mind that your overtime pay may be different if you are in a union. If your employer does not pay you for your overtime hours, you can file a complaint with the State Labor Commissioner.
Time and a half (1½) is required after 8 hours and double time is mandatory after 12 hours, or on the seventh day of work in one week. Workers can vote to adopt an alternative schedule that includes 10 hour days with a two-thirds majority. Individual workers can use personal time, and make up hours later that week, but cannot work more than 11 hours in one day without receiving overtime pay.
Employees voluntarily working an alternative schedule on July 1, 1999 which does not exceed 10 hours in a day, can continue to do so by written request.
9. Does my employer have to give me vacation time?
No, your employer is not required to give you vacation time. However, your employer must allow you to take unpaid time off to take care of family or medical matters (see next question).
10. Can I take time off to bring my child to the doctor?
Generally your employer will allow you to take sick leave or unpaid leave time to take your child to the doctor. However, if your child is seriously ill and your employment status meets certain requirements, your employer must allow you to take up to twelve (12) weeks of unpaid leave to care for your child, parent, spouse or yourself; to give birth and care for your child; or to adopt or care for a foster child. You will still be covered by your health benefits while you are on leave. After you come back to work, your employer must give you back your old job or one similar to it.
C. Safety and Worker’s Compensation
1. Can I refuse to work with hazardous substances?
It depends. If you belong to a union, you should always ask your union representative before you refuse to work. If you are not in a union, you generally have the right to refuse to work with hazardous substances if:
- it meets the state law definition of "hazardous,"
- doing the work violates state health or safety standards, and
- the hazard is real and obvious to you or your co-workers.
If you meet these three requirements, then your employer can’t fire you or discriminate against you for refusing to work with hazardous substances.
2. Can I be fired for reporting unsafe working conditions?
No, if you file a health or safety complaint with Cal/OSHA, your identity can remain confidential, and your employer can’t fire you or discriminate against you. If you are fired or disciplined for making a complaint, you can file a retaliation claim with the State Labor Commissioner’s Office.
3. Do I have to provide my own safety devices, such as safety glasses, shoes and hats?
No. Generally, your employer must provide you with safety equipment, make sure your working environment is safe, and show you how to handle certain dangerous substances or equipment.
4. What if I get hurt on the job?
If you get hurt on the job, or even away from your work-site when you are doing your job duties, you may be entitled to worker’s compensation. It doesn’t matter who caused the injury. You should report the injury to your supervisor in writing, go to a doctor, and file for worker’s compensation. You may be able to get medical benefits, a portion of your weekly earnings while you are away from work, and perhaps long-term payments if you are permanently disabled.
1. What is discrimination?
Discrimination occurs when your employer makes an employment decision about you based on your race, color, religion, national origin, sex, marital status, sexual orientation, physical or mental disability, or medical condition. In addition, local laws may also protect other characteristics.
2. How do I know if I’ve been fired or disciplined based on a discriminatory reason?
In California, all employees are employed "at-will." For most employees, this means that your employer can fire or discipline you for any reason, as long as it is not discriminatory.
For example, if your employer does not like your shoes, they can fire you simply based on that reason because it is not discriminatory. An action is only discriminatory if it is based on one of the categories listed in Question #1 (above).
If you think you’ve been fired for a discriminatory reason, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) or with the Department of Fair Employment and Housing (DFEH). Keep in mind that you have certain time limits for filing a complaint.
3. Can my employer require me or my co-workers to speak only English while at work?
It depends. If the employees affected by this rule are fluent in English, then your employer can require English only, because it would not be discrimination based on national origin. However, if you don’t speak English, or speak very limited English, then an English-only rule could be national origin discrimination. Keep in mind that an employer can require English to be spoken at certain times if it is necessary for safety or a similar business reason.
4. What is age discrimination?
Age discrimination is when an employer treats an employee differently because he/she is 40 years of age or older. If you feel you have been discriminated against because you’re 40 years old or older, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) or with the Department of Fair Employment and Housing (DFEH). Keep in mind that you have certain time limits for filing a complaint.
5. What is sexual harassment?
Some examples of sexual harassment are: staring, making sexual comments of jokes, touching, having posters of naked people, asking an employee for a date in exchange for a promotion, or threatening to fire or firing an employee for not going out on a date. Sexual harassment can occur between people of either gender.
6. What is racial harassment?
Racial harassment is when an employee is harassed because of his/her race, color or national origin. It can include: racial insults, fighting, or displaying insulting posters, cartoons, or objects about an employee’s race.
7. What can I do if I’m sexually or racially harassed?
Always keep detailed written records of any and all incidents of harassment, including names of witnesses. You can:
- Talk to the person to stop his/her behavior, or
- File a written complaint about the other person’s behavior with your supervisor or Personnel/Human Resources department, or
- File a complaint with the Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC). Keep in mind that you have certain time limits for filing a complaint.
8. What if I get a bad evaluation?
If you receive a bad evaluation from your supervisor and you disagree with it, you can talk to your supervisor or Personnel/Human Resources department about it.
A common situation is when you’ve been working for one supervisor for 5 years, and then you get a new supervisor whom you don’t get along with. You suspect your new boss doesn’t like you because of your race, and then when he gives you a bad evaluation, your suspicions are confirmed. If you think you got a bad evaluation because of your race or another protected category, please see Question #2 (above) for what to do.
If you think your supervisor gave you a bad evaluation to retaliate against you, you must show: 1) that you opposed an illegal practice by your employer, or 2) that you participated in a formal proceeding against your employer. You can file a complaint with the Department of Fair Employment and Housing (DFEH), the Equal Employment Opportunity Commission (EEOC), or the State Labor Commissioner.
The following issues regard your rights if your employer has fired you or laid you off, or if you voluntarily quit your job.
1. How do I know if I’ve been fired for a good reason?
An employer can generally fire you for any reason as long as it is not based on discrimination (see Question #2 under Employment Discrimination). In addition, your employer can generally fire or discipline you for misconduct, poor performance, habitual lateness, etc.
2. When should I get my last paycheck?
It depends. If you were fired, your employer must give you your last paycheck at the time you’re fired. If you quit, your employer must give you your paycheck within 72 hours of when you quit. But if you tell your employer ahead of time that you’re quitting, then your employer must give you your paycheck when you leave.
3. Will I be able to get unemployment benefits?
It depends. If you were fired for misconduct or if you quit your job without a good reason, then you are generally not entitled to unemployment. In addition, in order to qualify for unemployment, you must be "able, available, and looking for work" and must have earned a certain amount of money in the past.
4. What can my former employer tell my prospective employer who calls for a reference?
Your former employer can tell your prospective employer anything about your job performance or skills, as long as it’s true and accurate. Keep in mind that your former employer isn’t required to answer any questions about you.
A. Legal Services & Referral Agencies
- Asian Law Alliance
184 East Jackson Street
San Jose CA 95112
408/287-9710
- California Rural Legal Assistance
7949 Wren Avenue, Suite B
Gilroy CA 95021
408/847-1408
- East San Jose Community Law Center
1765 Alum Rock Avenue
San Jose CA 95122
408/254-0444
- Lawyer Referral Service
Santa Clara County
408/971-6822
- National Labor Relations Board
901 Market Street
San Francisco CA 94103
415/995-5300
- Cal OSHA
2010 North First Sreet, Suite 401
San Jose CA 95131
408/452-7288
- Department of Fair Employment & Housing
111 North Market Street, 8th floor
San Jose CA 95113
800/884-1684
- Department of Labor, Wage & Hour Division
60 South Market Street
San Jose CA 95113
408/291-7730
- Disability Insurance
297 West Hedding Street
San Jose CA 95112
408/277-9499
- Equal Employment Opportunity Commission
96 North 3rd Street, Suite 200
San Jose CA 95112
408/291-7352
- Labor Commissioner’s Office
100 Paseo de Antonio Room 120
San Jose CA 95113
408/557-7878
- Small Claims Court Advisor
Santa Clara County
408/792-2881
- Unemployment Insurance
1901 Zanker Road
San Jose CA 95112
408/436-5600
- Worker’s Compensation
100 Paseo de Antonio Room 241
San Jose CA 95113
408/277-1246
