Employment Law FAQs

1. Are there questions that an employer may not ask during a job interview?
   
   There are a few types of questions that an employer is legally prohibited from asking during a job interview. An employer may not ask about an applicant's medical information. However, an employer may describe the duties of a job to an applicant and ask if the applicant can perform those duties, either with or without reasonable accommodation. Questions regarding an applicant's race, national origin, religion and family status are prohibited, as are questions to determine if the applicant is a member of a protected class.
2. What are the protected classes in California?
   
   California and federal anti-discrimination laws protect the following employee classifications: race, color, national origin, gender, religion, age (over 40), mental or physical disability, veteran status, medical condition, marital status, sexual orientation and pregnancy.
3. What is at-will employment?
   
   In California, an at-will employment relationship is presumed if there is no oral or written agreement specifying the length of employment or the grounds for termination. An at-will employee is one whose employment has no specified terms and may be terminated at the will of either party on notice to the other.
4. Do employees have the right to inspect their personnel file?
   
   California law requires that employers allow employees and former employees access to their personnel files and records that relate to the employee's performance or to any grievance concerning the employee. Employers must do one of the following: a) keep a copy of the employee's personnel records at the place where the employee reports to work; b) make the personnel records available to the employee at the place where the employee reports to work within a reasonable period of time following the request; or c) allow the employee to inspect personnel records at the location where they are stored, with no loss of compensation to the employee.
5. Is an employer required to provide "reasonable accommodation" to an employee with a disability?
   
   An employer is not automatically required to provide a disabled employee with accommodations. Rather, the burden is on the employee to notify the employer and request assistance in performing job duties. At that point, the employer is required to work with the employee to determine where an accommodation is needed and, if so, what accommodation may be appropriate. Both the employer and employee have a responsibility to cooperate in finding a reasonable accommodation. An employer may make accommodations for a disabled employee by, for example, making existing facilities accessible and usable to the disabled employee, or restructuring the employee's job in terms of hours or equipment. However, the employer is not obligated to provide a reasonable accommodation where such accommodation results in "undue hardship" to the employer. Under the "undue hardship" defense, the employer does not need to provide a reasonable accommodation where a particular accommodation is very difficult to attain or is too expensive, or where the changes would be disruptive or fundamentally alter the nature of the operation of the business.
6. When is harassment illegal?
   
   It is not illegal for a supervisor to harass an employee simply because he or she doesn't like the employee's work or doesn't like the employee as an individual. Harassment is illegal only if it is based on a protected characteristic of the employee, such as gender, age (over 40), race, national origin, religion, or disability. Moreover, the harassment must be "severe and pervasive" in order to violate the law. An isolated incident, while offensive, may not violate the law. On the other hand, one incident of harassment, if it is severe enough, may violate the law. Also, the harassing behavior must be offensive to a reasonable person and to the employee. A "reasonable" person can be defined as an average employee in the same protected category as the employee reporting the harassment.
7. What is sexual harassment?
   
   Federal and state regulations define sexual harassment as unwanted sexual advances, verbal or physical conduct of a sexual nature, and requests for sexual favors. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. Such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive working environment for the employee.
8. Are employers required to present sexual harassment training?
   
   Effective January 1, 2006, all employers with 50 or more employees must provide all supervisors with two hours of sexual harassment training. A "supervisor" is anyone with authority to hire, fire, or discipline employees, or anyone with the responsibility to direct employees or adjust their grievances, or to effectively recommend such action.
9. What is the Family and Medical Leave Act?
   
   The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 workweeks of unpaid, job-protected leave a year and requires group health benefits to be maintained during the leave.
   
   To be eligible, employees must have worked for the employer for a period of at least 12 months, worked at least 1,250 hours during the 12 months preceding the leave, and employed at a work site with 50 or more employees. FMLA may be taken for the following reasons: 1) birth and care of the employee's child or adoption or foster care of a child; 2) care of an immediate family member who has a serious health condition; or 3) care of the employee's own serious health condition. FMLA is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor.
10. How is the California Family Rights Acts different from FMLA?
    
    The California Family Rights Act (CFRA) is a State act that provides leave provisions similar to FMLA, with some differences. For example, under CFRA an employee's serious health condition does not include disabilities due to pregnancy, childbirth or related medical conditions as would be covered by FMLA. Also, CFRA allows an employee leave to care for a registered domestic partner's serious health condition, while FMLA does not. CFRA is administered by the California Department of Fair Employment and Housing.
11. What rights does an employee have under the Pregnancy Disability Leave law?
    
    Under the Pregnancy Disability Leave (PDL) law, an employer must provide up to four months disability leave for a woman who is disabled due to pregnancy, childbirth, or a related medical condition. An employee who works for an employer with at least 5 employees is eligible for pregnancy disability leave regardless of the length of time she has worked for the employer.
12. When is it illegal for an employer to fire an employee?
    
    In an at-will employment, the employer may fire the employee for any reason, or no reason at all, with some exceptions. An employer may not fire an employee for discriminatory reasons, such as race or gender. The employer also may not fire the employee because the employee has engaged in a protected activity. Protected activities include complaining of harassment, discrimination or another violation of the law, filing a lawsuit against the employer claiming discrimination, filing a workers' compensation claim, or participating in an investigation of the employer conducted by an administrative agency.
13. What is constructive discharge?
    
    Constructive discharge occurs when the employee feels he or she was forced to quit because the employer instituted or allowed a change that made working conditions intolerable, and any other reasonable employee would have quit too under the same circumstances.
14. Where can I find more general information regarding employment issues?
    
    For more information, visit the State of California Division of Labor Standards Enforcement web site at http://www.dir.ca.gov/dlse/ or the Department of Fair Employment and Housing web site at http://www.dfeh.ca.gov/.

Grace Hollis & Hanson LLP provides the information in the Employment Law FAQs for informational purposes only. The information presented is not a substitute for legal advice from qualified counsel. You should not act or rely on information in this site without seeking the advice of an attorney. Your use of this site does not create any attorney-client relationship between you and Grace Hollis Lowe Hanson & Schaeffer LLP.

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