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Is an employer under a legal obligation to hire or promote me if I am the most qualified person for the position?

No. Under both federal and California law, an employer does not have to hire or promote the most qualified applicant. But the employer cannot base decisions on such factors as sex, age, race, religion, or any other protected category. This is how the law draws the line.

Is a prospective employer allowed to ask about my marital status?

No. Under California law, the employer cannot ask questions about whether you are married or planning to be married or whether you have children. The employer is also prohibited from asking questions concerning your sexual orientation or whether you are planning to have children. The employer can, however, ask whether you have any personal situation that could hurt your ability to fulfill the job's requirements.

Can the employer ask me if I have ever been arrested?

Under California law, an employer may not ask whether you have ever been arrested. Neither can the employer inquire whether or not you have a juvenile criminal record. The employer may ask, however, whether you have ever been convicted of a crime.

Can a former employer say bad things about me on a reference check?

In California, the general rule is that a former employer may provide 'nonconfidential' employment information about a past employee as long as it is not false or provided to intentionally harm you. Should your former employee provide false information that disparages your reputation, you may be able to sue for defamation. Most employers play it safe by refusing to comment at all on past employees' performance and will only confirm the dates of hire and the length of employment.

Can I be fired without cause?

In California you may be fired without cause unless you have a signed employment contract for a fixed term. Most employees are considered to be employees "at will," which means that the employee or the employer can terminate the employment relationship at will and without cause at any time and under any circumstances as long as the employer does not fire the employee for an illegal purpose or against a public policy.

What if my employer does not have an employee handbook?

In California, while an employer is not legally required to publish an employee handbook, it can expose itself to unnecessary liability by not having one. Employee handbooks are usually written in favor of the legal rights of the employer. The employee who does not follow the rules of the company handbook might be prevented from successfully bringing an otherwise valid legal claim. You are strongly advised to follow the handbook to the letter if there is a handbook.

Is my employer legally responsible for my safety?

Generally yes. Both federal and California law mandate that employers furnish a place of employment that is free from recognized hazards that cause or are likely to cause death or serious physical harm to their employees. In most instances, you may anonymously complain about an unsafe work environment and be protected against employer retaliation. Your damages, however, may be limited to the recovery laws set out by the workers' compensation system.

How can the workers' compensation laws protect me?

Workers' compensation laws are intended to compensate employees who have been injured in work-related accidents. Unfortunately, the measure of damages and compensation afforded injured workers in California is very limited and is fixed by statute. The workers' compensation laws were developed for the protection of the employers. The workers? compensation insurance program is your sole remedy if you are injured. There are three major injury classifications: permanent total disability, temporary total disability and temporary partial disability. More information about workers' compensation can be found in the Unemployment Insurance Code and Title 22 of the California Code of Regulations.

How does California protect me from sexual harassment?

In California, the Department of Social Services' Civil Rights Bureau is responsible for protecting you against employer-initiated sexual harassment and discrimination claims. Unlike the workers' compensation program, employers can be held directly responsible for not only their own unwelcome sexual advances, but also for unwelcome sexual advances from low-level employees. The key issue is to determine whether the employer knew or should have known about its hostile workplace. In California, employees have a legal duty to follow their employers' policies, especially when there are reporting requirements relating to incidents of sexual harassment.

What types of discrimination does California law protect against?

In California, employers are prohibited from terminating or discriminating against employees because of their age, sex, race, religion, disability, national origin, or marital status. Other suspect categories should be explored with an experienced employment law attorney.

What if I report my employer to the government for illegal conduct?

California protects you if you are what is considered a "whistleblower" and you report or attempt to report your company to a government agency for committing a crime or for activities that are against expressed public policy. It is strictly illegal for your employer to terminate you for refusing to break the law or for filing a claim or notifying a governmental agency about your employer's illegal conduct. Such termination is considered to be retaliatory and could subject your employer to punitive damages.

What if I need to go on medical or paternity leave?

The federal Family and Medical Leave Act (FMLA) protects you from being fired or retaliated against for going on medical leave or for attending a family emergency. Specifically, employees are allowed to take up to 12 weeks of unpaid medical leave, with continued medical benefits and restoration of your original position upon return. You are eligible under FMLA when you have worked for the same employer for the previous 12 months and have worked at least 1250 hours in the previous 12 months.

What are my unemployment benefits in California?

In California, the Employment Development Department manages the unemployment insurance program under the provisions of the Unemployment Insurance Code and Title 22 of the California Code of Regulations. These benefits, however, are based on both federal and state statutes. The primary purpose of the law is to provide compensation to workers who have been terminated without cause, through no fault of their own. The employer pays into the program based on a set group of criteria.

How should I deal with discrimination?

First, you should know that there are many California and federal laws that prohibit discrimination and harassment on the basis of race, color, national origin, sex, religion, disability, pregnancy, and age, among other classifications. If you think you are being discriminated against or harassed by your employer or coworkers, there is much you can do. First, tell your employer immediately what happened and make your employer aware that you feel you were the subject of discrimination. Experience shows that discriminatory acts rarely go unnoticed. While employers will rarely, if ever, admit that they engaged in discriminatory practices, more likely than not your employer will take your written and verbal complaints very seriously, because California is a punitive-damage state, and your employer will not want to expose itself to this type of damage.

If you feel that you are being discriminated against, detail the specific acts of discrimination in a diary. Use full names and include the date, time, location, and witness identities if available. Keep any objects or pictures that might have been used. If photos, drawings or statements were put on the company bulletin board try to remove them and make a copy. This can be very strong evidence for your case, so tell your lawyer about it immediately.

Can my employer demote me because I am pregnant?

No. The Pregnancy Discrimination Act and the Civil Rights Act of 1964 prohibit discrimination on the basis of pregnancy, childbirth or related medical conditions. Women affected by pregnancy or related conditions must be treated in the same manner as other employees. It is unlawful for an employer to not hire a woman because she is pregnant. If the employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. The simple law is that pregnant employees must be permitted to work as long as they are able to perform their jobs. After childbirth, employers must hold open a job for an employee with a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

What if I don't have pregnancy coverage from my employer's health plan?

Most, if not all, employer-sponsored health plans today cover expenses for pregnancy-related conditions. Pregnancy-related expenses should be reimbursed the same as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charges basis.

Do I have a right to privacy at work?

Your right to privacy at work is very limited. The employee's right to privacy has been complicated by the increased use of computers and electronic mail in the work environment. Employers can and do monitor workplace communications made by employees using company computers -- including use of the Internet and company e-mail. However, some activities, such as private conversations and employee secured work areas such as a locked desk or locker has been afforded additional privacy protections.

Are e-mail and the Internet private at work?

If you are using your employer's computer system, your privacy is mostly unprotected. Using e-mail at work has been found to be company business over company property. As long as it is for a business purpose and not to discriminate or violate the law, employers generally have the right to read and monitor employee communication. Employers have the right to check for productivity as well as possible criminal conduct. California courts have allowed e-mail to be submitted into evidence during trials to prove employee misconduct. California employers have the right to track the Web sites you visit, to block you from visiting specific Internet sites, or to limit the amount of time you may spend on a specific Web site.

Are phone and voice mail messages private?

While employers do have some legal restrictions regarding monitoring and recording phone calls made by employees, California is becoming much more permissive in allowing employers, under the pretense of a legitimate business purpose, to monitor business-related phone conversations and voice mails. California courts have held that employers have a right to monitor employee conduct, productivity and compliance with company rules. That right, however, is not unlimited and is subject to federal law and regulations. Under the Electronics Communications Privacy Act (ECPA) an employer may not monitor an employee's personal phone calls, even those made from telephones on work premises, unless the employee has agreed in advance to being monitored for training purposes.

Employee drug testing

In California, an employer may, under certain circumstances, require an employee to submit to drug testing. The general rule is that an employer may test employees for drug use for those workers who by virtue of their job function (such as a nurse or school bus driver) carry an elevated risk of potential danger to themselves or others in the course and scope of their employment. They may also test a worker who has been involved in a work-related accident where drug or alcohol use was suspected. The employer?s right to test is not without legal risk to the employer. The employer must have a legitimate purpose to require an employee to submit to testing. Moreover, there is pending legislation that may prohibit employers in California from testing if such an intrusion is determined to be motivated by personal issues rather than by business- or safety-related concerns.

In California, the courts have generally decide issues of this type on a case-by-case basis.

Employee medical examinations

In California, once you have been hired, your employer has the right to request that you undergo an employment medical examination. Usually this done only to determine whether you are physically fit enough to perform the job. However, the employer is not entitled to know private medical information that has no bearing on your fitness to perform required employment tasks.