Frequently Asked Questions
- Getting help with your case
- How to file a harassment suit
- Sexual harassment law unique to California
- Steps to take if you've been harassed
- If my employer has classified me as an "independent contractor," will that affect my case?
- Can my employer fire me for no reason?
- What should I do if I am being harassed or discriminated against at work?
Q: If my employer has classified me as an "independent contractor," will that affect my case?
A: Yes, classification as an "independent contractor" may have serious consequences on a potential case for wrongful termination, wage and overtime claims, and unpaid benefits claims. Independent contractors are in business for themselves; they use their own business equipment, may have multiple clients and their own employees, and they usually control the details of how the job is completed. Employees, on the other hand, are under the control of the employer as to how, when, and where a job duty is performed and typically earn regular payment through hourly or salaried wages. Independent contractors, however, are responsible for paying their own taxes and are not eligible for unemployment compensation, workers' compensation, or other fringe benefits.
Perhaps most importantly, independent contractors do not enjoy the benefits and protections of many provisions in the California Labor Code. For example, only employees can file wrongful termination claims. However, just because an employer has classified you as an independent contractor does not preclude you from filing a claim; employers often misclassify employees. Employers will sometimes try to classify employees as independent contractors to avoid paying taxes, benefits, and complying with the labor code. The burden is on the employer to prove that you have been correctly classified.
Q: Can my employer fire me for no reason?
A: It depends widely on the type of employer–employee arrangement you have. If you are an independent contractor, the answer is "yes." If your employment is contracted only for a limited length of time, you can only be fired for "cause," which is usually defined in your employment contract. If you are a part of a labor union, your rights are determined by the union contract and in some cases federal law. Generally, unionized employees can be disciplined or fired only for "cause," and they can appeal this action by filing a grievance through the union. Public employees' rights are generally determined by statute or regulations and their labor unions, and may be subject to rulings by the California Public Employment Relations Board (PERB).
Q: What should I do if I am being harassed or discriminated against at work?
A: First, you should inform your supervisor or human resources representative, in writing, about your experiences. It is especially helpful to mention the terms "discrimination, harassment, and/or retaliation on the basis of age, race, sex, disability." Failing to use such specific terms increases the likelihood that your employer will claim later that you never made a "claim of discrimination" and that therefore, your employer had no duty to conduct an investigation. Additionally, you should explicitly demand that the employer investigate and stop the discrimination, harassment, and/or retaliation. If you fail to make such an explicit demand, the employer may be able to avoid liability because you did not give it a chance to remedy the situation.
Before you can file a lawsuit for discrimination, you must file an administrative claim with either the California Department of Fair Employment and Housing ("DFEH") and/or the federal Equal Employment Opportunity Commission ("EEOC"). Claims filed with DFEH must be filed no later than one year from the date of termination or one year from the date of the discriminatory act, whereas EEOC claims must be filed within six months. If you believe you are being discriminated against or harassed at work, you should discuss this with an experienced attorney as soon as possible. We can assist you with the written complaint to your supervisor and proceed with your case.